There are circumstances when both employees and employers may want to record formal meetings, for example in the hope that this supports their position should a claim be raised in the future. Employment lawyer Hayley Johnson considers the extent to which there is any right to record such meetings and the pitfalls of doing so.
Q Does an employee have the right to record a disciplinary or grievance meeting?
An employee does not have the right to record a meeting. Meetings may, however, be recorded with the employer's consent.
In practice, recording meetings may make those taking part uncomfortable and so may not be helpful to the conduct of the meeting. As a result, rather than recording a meeting it is preferable to have a neutral person present to take notes, which may be circulated and agreed afterwards.
Employers may wish to review their applicable procedure to state expressly that employees are forbidden from recording hearings, if this reflects the response they would give if asked this question by an employee. This will assist in managing employees' expectations.
Q Can allowing a meeting to be recorded be a reasonable adjustment for a disabled employee?
Yes. For example, an employee who is not able to take his or her own notes of a meeting due to a physical or mental impairment that prevents him or her from doing so may ask for an audio recording of the meeting as an alternative.
If a disabled employee asks to record the meeting, the employer should consider:
- whether or not recording the meeting would remove any disadvantage that employee has; and
- whether there are any alternative options which could remove the disadvantage; for example, would the employee be happy to rely on notes taken on his or her behalf by a companion accompanying him or her to the meeting?
If recording the meeting would not remove any disadvantage or there is a reasonable alternative way of preventing the disadvantage, the meeting need not be recorded.
Q If an employee records a meeting covertly, can they use it as evidence at an employment tribunal?
Yes. Employment tribunals take a generous view on what evidence is admissible. The fact that a meeting is recorded in secret does not mean it cannot be used as evidence.
The exception here is that the covert recording of private deliberations (for example, discussions about what the outcome to a disciplinary hearing should be) may not be admissible due to public policy reasons. The case law in this area suggests, however, that even these deliberations may be admissible if the employee involved says that they are the only evidence of alleged discrimination.
Q Can an employer covertly record a meeting?
This is not advisable. It is only in very exceptional circumstances that employers can record meetings covertly without breaching the Data Protection Act 1998.
The Information Commissioner's guidance on the Act's application in an employment context, the Employment Practices Data Protection Code, 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. This is unlikely to apply to disciplinary and grievance hearings.
In addition, a covert recording may breach the employee's right to private and family life under art.8 of the European Convention on Human Rights, unless the employer can explain why it was a proportionate way of achieving a legitimate aim.
Employers will also be mindful of the negative impact that recording meetings covertly could have on workplace morale if their employees find out a meeting was recorded in secret.
Employers may always record a meeting with an employee's consent. If they record a meeting in this way, they should remember that this is "personal data" and should be processed as such in accordance with the Act's principles in the same way that they would treat the individual's personnel file.
Hayley Johnson is a senior solicitor in the Brodies employment team; additional research was carried out by Iona Mitchell, a trainee solicitor in Brodies employment team