Employees do not have a right to record grievance hearings and even if they ask permission an employer may refuse to permit a meeting to be recorded. However, it is within the interests of both parties to have a record of matters discussed during a grievance hearing for future reference. The preferable method of recording information is to invite a neutral person to attend the meeting to take handwritten notes, which can then be distributed and agreed by the parties at the end of the meeting.

Covertly recording a grievance hearing is not a statutory reason for dismissal. However, there may be instances where it could constitute a breach of the implied contractual term of mutual trust and confidence. The recent GB case, Phoenix House v Stockman UKEAT/0058/18, considered that the following factors could suggest that a breach of contract has occurred:

• The employee lied about making a recording;
• The employee was expressly forbidden by the employer from making a recording;
• The meeting discussed highly confidential information; and
• A covert recording had been given as an example of gross misconduct in the employer’s disciplinary policy.

Furthermore, an employer should check its disciplinary policy to confirm if specific reference is made to covert recordings without permissions under misconduct or gross-misconduct.

Making a covert recording of a grievance hearing is not a statutory reason for dismissal, however, if an employer’s disciplinary policy makes specific reference to the fact that covert recordings of meetings are forbidden, and an employee makes a recording regardless, the employer may consider taking disciplinary action against the employee.

Employers should be aware that whilst a covert recording of a grievance meeting can amount to misconduct, what is said in a meeting may still be adduced as evidence at a tribunal.

The admissibility of covert recordings of an employer’s private deliberations over the outcomes of disciplinary and grievance hearings was considered in Punjab National Bank v Gosain UKEAT/0003/14. In this case, an employee secretly recorded panel members’ discussions, some of which included private comments made about the employee during breaks in the hearings. The tribunal ruled that the tapes were admissible and this decision was upheld by the EAT. The general rule established by the case is that evidence should be admissible if it is relevant.