When you hold a meeting with an employee, does it cross your mind that they may be recording it? If not, it should do. If you go back a few years, for an employee to record a meeting would have been fairly obvious. The size of the device needed would have given them away and the quality of recording would likely have been poor. These days however, you can get a very good recording on a smart phone, something we all have. Short of searching the employee (never a good option), you would not know they had a recording device on them.
The two questions I usually get asked about this are:
- Can an employee use a covert recording in an Employment Tribunal?
- Can an employee be disciplined for covertly recording a meeting?
The case that looked at this gave us some helpful guidance. We can take the following things from it:
- When an employee secretly records an internal meeting or hearing with the employer, the general rule is that the recording of any parts of the meeting where the employee was present may be admissible before an Employment Tribunal if the Tribunal believes it is relevant.
- It is also possible that recordings, even where the employee wasn’t present, could be admissible as evidence at a Tribunal. The reasons the employee made the recording will be relevant here, but it is a risk.
- A failure of an employee to say they are recording a meeting could lead to reductions being made to a subsequent award of compensation in any Tribunal claim.
- The act of covertly recording a meeting may amount to misconduct, depending on the employer’s disciplinary rules and procedures. The Courts acknowledged that an employee may have legitimate reasons for wanting to record a disciplinary or investigative meeting but that it is good practice for parties to communicate their intention to make a recording. While the Court confirmed that it will generally amount to misconduct for an employee not to inform the employer that a recording is being made, it will not necessarily amount to gross misconduct. All the circumstances will need to be considered including the employee’s reason for making a secret recording and any damage done to the employer as a result of information being recorded without its knowledge.
So, what can we take from this:
- In almost all cases, an Employment Tribunal will listen to covert recordings where the employee was present, and they may even do so where the employee wasn’t present. This may include your deliberations. One of the Tribunal’s main tasks is to find out what happened. A recording is great evidence of what happened. Furthermore, a recording gives a very different account of a meeting than a set of minutes. Minutes do not capture someone being aggressive or difficult, a recording does. Our advice to employers with any formal meetings is assume you are being recorded. It is a very good discipline, helps you keep your cool and stick to the meeting plan. It is no exaggeration to say that we have seen claims turn on the Tribunal hearing a recording that did not put the employer in a good light. Tribunal Judges and panels are after all human beings. As in the case just looked at by the Courts, the Tribunal may reduce the employee’s compensation, but it will unlikely be by much and the recording may have helped the employee win.
- Will it be misconduct for an employee to secretly record a meeting? The recent case says it most likely will be but there are things employers can do to help. If you have a clear policy on recordings of meetings, then you stand a better chance of establishing misconduct. It was commented in the case that few employers list covert recordings as gross misconduct in their disciplinary rules. If you don’t, get that changed. If nothing else, it makes it clear to employees what the standards are.
- Should you refuse to let an employee record a meeting if they ask? We don’t recommend that. It looks like you have something to hide. Provided you are well prepared for the meeting, a recording should not give you any concerns – you have nothing to hide.
- If you want to record the meeting, have that right in your policy and make it clear to the employee you are recording the meeting.
- To avoid the chance of your deliberations being recorded, I would suggest that you breakout to a different room to have them, removing this risk.
What this does highlight is the challenge that holding HR meetings with employees can hold, particularly for smaller businesses with no HR. That is where we can help. That can be either helping you prepare the meeting, attending the meeting with you or doing the meeting for you.
If you have any questions on this article, or any other area of Employment Law or HR, please contact Rob Tice on 01332 866610 or email at firstname.lastname@example.org.