An employee may wish to make a recording of a work meeting, such as a disciplinary or grievance hearing or a meeting with his or her line manager, for a number of reasons.
Generally, this will be in circumstances where the employee feels that he or she has been treated unfairly and wants either to prevent such treatment or to obtain evidence of it. The employee may think that a recording will provide evidence of unfairness, for example, to demonstrate that a grievance meeting was not a genuine attempt to deal with issues that he or she had raised. Alternatively, the employee may wish to have a full transcript of the meeting for use at the next stage of an internal process or in future litigation.
Do they have the right?
Employees do not have the legal right to record an internal meeting. Therefore, if an employee asks to record a meeting, as the employer, you must decide whether or not to permit the request.
If the employer’s policy is that recordings are not permitted, the person chairing the meeting should remind the employee 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 meeting.
If the employee refuses to confirm that he or she is not recording the meeting – or confirms that he or she is recording the meeting – it may be appropriate for the employer to adjourn the meeting to decide how it should be conducted.
You may be reluctant to allow recordings. However, rather than automatically refusing all requests, it is advisable for the Chair to ask for the employee’s reasons for wishing to do so.
The employee may have a disability that would make it difficult for him or her to take a written note of the meeting. In such circumstances, you would need to consider if allowing the employee to record the meeting would be a reasonable adjustment.
Employers should be aware of the potential for employees to record meetings without their knowledge and should consider how to address this risk.
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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. Knowledge that a meeting is being recorded could also lead to a more formal and adversarial approach than would be appropriate.
If your Company policy is not to allow recording of meetings, it should clearly document this in writing, for example in the staff handbook and Disciplinary and Grievance Procedures. As this is a personal choice for employers we have not included this within the documents on our online HR Toolkit. However, if you wish to include a section on the refusal of recordings, the relevant documents should also expressly state that making recordings in breach of the policy will be grounds for disciplinary action.
There is an alternative, as employers should supply the employee with a copy of its notes from any formal meeting. Employees are also entitled to be accompanied at formal meetings and both can take notes at the meeting.
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 person chairing the meeting and other 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. 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 he or she 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 his or her own personal use.
Recordings made by the employer
If an employer receives a request from an employee to record a meeting, it could decide to record the meeting itself and provide a copy of the recording to the employee, to maintain control over the process. This may also reduce the chance of the employee recording the meeting covertly. The agreement of the employee will be required for the employer to make its own recording. This approach may not be practicable for all meetings because of the additional administration involved, but for matters that are likely to be particularly contentious or difficult, it may be something to consider.
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 and a long meeting often takes many hours to transcribe.
If an employee has a medical condition that makes it difficult for him or her to take a written record of the meeting or to recall the detail of what was said, it may be advisable for the employer to permit the employee to make a recording of the meeting. This may be a matter of procedural fairness. Where the employee is disabled, it may also be required as a reasonable adjustment under the Equality Act 2010.
Where an employer is aware that an employee has a medical condition that may impact on his or her ability to take notes or recall the detail of a meeting, the employer should discuss potential adjustments with the employee. For informal meetings, it may be that other steps can be put in place to help the employee, such as offering the support of a note-taker or allowing additional time for note-taking during the meeting. Informal meetings you should have already arranged for a note-taker to be present.
An employee may decide to make a covert recording of a meeting instead of seeking permission to make a recording, or after such a request has been turned down. The prevalence of smartphones and other portable recording devices means that this has become easier for employees to do.
Circumstances in which employees may decide to make covert recordings of meetings include:
- to gather evidence of bullying or harassment;
- to gather evidence for a claim against the employer, such as evidence of a predetermined decision to dismiss made outside the context of a disciplinary hearing; and
- where the employee is the subject of allegations, to obtain evidence to defend him- or herself by providing an accurate record of how a particular meeting or interaction was undertaken.
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 his or her only option.
The potential for covert recordings should be a reminder to employers 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, and decide whether or not it is appropriate to commence the disciplinary procedure. The employer should consider, for example, 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.
The admissibility of covert recording in employment tribunal proceedings
The use of covert recordings by employees 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 engaged because the employer would have to show that the relevant manager or HR professional’s right to a private or family life was being interfered with, and this would rarely be the case in a workplace meeting.
Tribunals have 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. If the ground rules of a hearing are that such deliberations will remain private, the parties should observe those rules. 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.
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