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Can disciplinary or grievance meetings be audio or video recorded?

Posted by Lesley Furber on Feb 27th, 2020 | Employment law

Can disciplinary or grievance meetings be audio recorded? Image of a dictaphone on the desk

There could be various reasons you, or your employer, may wish to audio record or video 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.

Because of the COVID-19 pandemic in 2020, many employees are now working at home, so video-recording any types of meetings may become an issue – we look at this particular issue below.

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 General Data Protection Regulations 2018, and there would be few exceptions under the GDPR 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 GDPR and must be ‘processed’ in accordance with the DPA principles, as it would treat an employee’s personal/personnel file.
  • Employers who are concerned about covert recording should ask their staff at the start of a meeting whether they intend to make a recording.

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 it could be a misconduct or gross misconduct – if it was done to ‘entrap’ the employer this could be gross misconduct; if it is only done to ‘keep a record,’ this is unlikely to be gross misconduct), and also bring the situation to an Employment Tribunal‘s attention (although the Tribunal may not prevent this evidence being used at a hearing)
  • In Phoenix House Ltd v Stockman in 2020, the Employer only became aware of the covert recording by Stockman in her unfair dismissal claim. They said this meant they would have dismissed her for gross misconduct if they had known about her recording. The original ET disagreed and said her recording was not a breach of the implied term of trust and confidence (that exists in all employment contracts). The Employment Appeal Tribunal agreed and said to ask why the employee had recorded the meeting (i.e. the purpose of the recording), which the ET had done, was the correct approach
  • Employees who record meetings covertly also need to consider the GDPR 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 are attempting to reach a decision on the hearing). Tribunals will though take a dim view of anyone who lies to their employer about making a recording, without a good reason for doing so.

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.

Video-recording meetings

With many staff working from home it might be tempting for the employer or employee to record their video meetings.

For employers, there is a large risk that video recording any type of meeting with an employee will breach data protection laws much more seriously than solely audio-recording them. This is because sensitive personal data will be obvious about all participants – their age, gender, ethnic origin, perhaps political opinions and health issues, disability, religious beliefs and sexual orientation – and any third parties that wander into the background of the recording at people’s homes.

The GDPR requires that you collect only data that “is necessary” and video-recording a meeting is probably going too far. There may be times when it is suitable, but tread very carefully.

If the employee gives their explicit consent to the recording, then this may not be valid consent, as it is arguable that their consent has not been ‘freely given’ because of the power imbalance between an employer and an employee.

If you do video-record a meeting, consider who may want a copy of the recording. You must keep the recording securely and give access to it to only those who need to know about it.

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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