Knowledge

Can disciplinary or grievance meetings be audio recorded?

Posted on Jun 27th, 2013 | Employment law

There could be various reasons you, or your Employer, may wish to audio-record important work meetings/hearings, including the hope that this will support your/their position should a claim (for unfair dismissal, or discrimination, for example) be made to employment tribunal in the future.

[Article updated for 2015]

However, neither an employee, nor an employer, has the right to record a meeting – unless both parties agree to the recording. It’s unlikely that many employers would agree to this (as it’s unlikely that most Employers disciplinary procedures or grievance procedures would expressly allow this).

Recording meetings can make all of those taking part feel uncomfortable, and may affect the way the meeting runs – it is much more preferable to have a neutral person present to take notes, which are shared with all participants afterwards.

Obviously, the employee has the right to be accompanied at a disciplinary or grievance hearing by a work colleague or trade union representative – and either the employee or person accompanying them can take notes also.

The note-takers are important in case the technology to audio-record the meeting fails, leaving no documentation to prove what was or wasn’t said.

What happens if an employee and employer don’t agree with the written minutes/notes of a disciplinary or grievance hearing? An employer should provide a copy of the minutes/notes taken at the meeting to the employee. If the employee doesn’t agree that the notes are accurate, the employer should ask him/her to give a corrected version. If the employer agrees that the employee’s version is accurate, the amendments can be agreed as the record. If the employer doesn’t agree that the employee’s version is accurate, it should keep both versions on record. Both versions of the notes can be referred to at any later date, including at tribunal.

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Employers who wish to record hearings need to consider:

  • Their obligations under the Data Protection Act 1998, and there would be few exceptions under the DPA when this would be possible. For example – the Employment Practices Data Protection Code (guidance from the DPA) says that employers may record their employees in secret only in very exceptional circumstances, such as where it is suspected that criminal activity has taken place.
  • If a covert recording may breach the employees’ right to private and family life under article eight of the European Convention on Human Rights.
  • If an employer records a meeting with the employee’s consent, the information should be treated as ‘personal data’ under the DPA and must be ‘processed’ in accordance with the DPA principles, as it would treat an employee’s personal/personnel file.

Employees who wish to record meetings:

  • Should ask for their employer’s permission to do this
  • If an employer’s disciplinary procedure specifically bans covert audio-recordings, and/or an employer has told the employee that recording the meeting isn’t an option (ideally in writing) and an employee continues to do this, then an employer can discipline the employee for this as well, and also bring the situation to an Employment Tribunal‘s attention (although the Tribunal may not prevent this evidence being used at a hearing)
  • Employees who record meetings covertly also need to consider the DPA if sensitive information about other people was discussed at the meeting
  • If an employee covertly records a meeting, an employment tribunal may allow this to be used as evidence in certain situations and circumstances (although generally will not allow the private deliberations of the disciplinary panel, when they’re attempting to reach a decision on the hearing).

If an employee has a physical or mental impairment that makes taking their own notes difficult or impossible then allowing them to take an audio recording of the meeting may be an option, if there is no other reasonable alternative.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.

 

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Written by Lesley Furber

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