The use of Zoom, Teams and cloud recording solutions has brought a shift in expectations when it comes to the recording of meetings. An employee or employer may wish to make a recording of a work meeting, such as a disciplinary or grievance hearing or a meeting with their line manager, for a number of reasons, but is it ok to record a meeting?
Organisations are increasingly recording Zoom meetings to improve the efficiency and accuracy of note-taking, to create long-term reference resources for marketing, training or quality assurance purposes and to aid asynchronous communications.
Recording conversations requires a culture of trust and respect. Particularly as the traditional purpose was to create recordings as evidence and therefore we would recommend transparency at the beginning of the meeting before using, for example, a screen recorder about the intent to start recording.
Can employees legally record a meeting without consent?
Employees do not have the legal right to record an internal meeting, whether meetings are video calls, Zoom meetings or take place in person with portable recording devices.
If the employer’s policy is that recordings are not permitted, the employee should be reminded of this at the beginning of the meeting. The chairperson should also make it clear that recording the meeting in breach of the policy would be grounds for disciplinary action. However, they do have a right to a copy of the notes taken at a formal work meeting such as a disciplinary hearing.
If the employee refuses to confirm that they are not recording the meeting, try to understand and address the employee’s reasons because employers should be aware of the potential for team members recording a meeting without consent.
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Refusing a request from an employee to record a meeting
An employer is entitled to refuse a request from an employee to record a meeting. You may be concerned that it will be difficult to run an effective meeting if participants know that it is being recorded. It is possible that participants will feel uncomfortable and be reluctant to contribute fully to the meeting if they know that their comments may be used against them later.
If your Company policy is not to allow the recording of meetings, it should clearly document this in writing; for example, in the staff handbook and Disciplinary and Grievance Procedures, expressly state that making recordings in breach of the policy will be grounds for disciplinary action.
Permitting a request from an employee to record a meeting
Most employers are unlikely to take an organisation-wide stance that all requests to record meetings will be permitted.
However, you may decide to permit recordings on a case-by-case basis, provided that the participants agree to the request. In this case, you should consider requiring written notice in advance of a request to record a meeting.
If you agree to allow an employee to record a meeting, you should establish some ground rules in relation to how the employee can make, store and use the recording of a meeting. You should make it clear that the employee is entirely responsible for making the recording and that the meeting will not be delayed or adjourned if there are technical difficulties.
You should require the employee to provide you with a copy of the recording. It would also be prudent to ask the employee to confirm in writing that they will not broadcast the recording, post it on the internet, or use it for any purpose other than keeping a record of the meeting for personal use.
Employers Recording Disciplinary Hearings
If an employer wishes to make a recording or receives a request from an employee, it could record the meeting itself to maintain control over the process. This may also reduce the chance of the employee recording a meeting without consent.
When making a recording, you should test the equipment and obtain technical assistance if required to ensure that an accurate record is made and all participants in the meeting can be heard.
You should also still arrange for notes to be taken.
The employer should consider whether to provide the employee with a copy of the recording (if it does, this needs to be in a format that the employee can use) or a transcript. Making transcripts of recordings can be a time-consuming task.
Suppose an employee has a medical condition that makes it difficult to take a written record of the meeting or recall the details of what was said. In that case, it may be advisable to permit the employee to make a recording of the meeting as a matter of procedural fairness. Where the employee is disabled, it may also be required as a reasonable adjustment under the Equality Act 2010.
The prevalence of smartphones and other portable recording devices means that covert recording has become easier for employees to do.
Where a covert recording produces evidence of serious wrongdoing, for example, harassment or bullying, the employer will need to consider the contents of the recording and address the issue that it uncovers, even where the evidence was obtained in breach of its policy or without permission.
The employer should recognise that such evidence would be difficult to establish through written documentation or public interaction witnessed by others and that the employee may have felt that a covert recording was the only option.
The potential for covert recordings should be a reminder to ensure that managers follow good practice in every meeting, in particular, avoiding “letting off steam” or making inappropriate comments if the employee leaves the meeting for an adjournment.
An employer may want to take disciplinary action against an employee who has made a covert recording. The employer must establish the facts of the case, following a proper investigation in line with the disciplinary procedure.
The employer should consider the employee’s reason for making the recording, whether or not he or she had been told that recording was not permitted and any mitigating circumstances. An employer will be in a stronger position to take disciplinary action, potentially including dismissal, if there is a clear policy that prohibits recordings and indicates that dismissal is a possible disciplinary sanction.
Employers should be aware that taking disciplinary action because an employee has made a covert recording could amount to victimisation under the Equality Act 2010, if the employee made the recording to provide evidence of unlawful discrimination.
Are secret recordings admissible as evidence in an employment tribunal?
The use of covert recordings as evidence in employment tribunal proceedings has been considered in a number of cases. Tribunals have a wide discretion to admit covert recordings as evidence and will generally hear them if they are relevant to the case.
Although the Employment Appeal Tribunal (EAT) has commented that the practice of making covert recordings is distasteful, that is a separate consideration to their admissibility as evidence.
While employers have sought to allege human rights violations to prevent the submission of covert recordings as evidence, it would be unusual for human rights issues to be breached in a workplace meeting.
Tribunals have also drawn a distinction between the open part of a disciplinary or grievance meeting in which the employee is present, and the part where the disciplinary or grievance panel withdraws to consider its decision in private. Tribunals are generally more willing to permit the submission of recordings of meetings where the employee was present.
It is accepted that members of a panel should be able to conduct a full and frank exchange of views on the basis that those discussions will remain private. Nevertheless, where private deliberations contain evidence of discrimination or other unlawful conduct, an employment tribunal might still permit a covert recording of them to be used as evidence.
So, take the opportunity to ask yourself if your house is in order. Updating and implementing new policies and procedures around disciplinary and grievance doesn’t have to be cumbersome.
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