Occasionally, when a member of staff is invited to attend a formal meeting, they may ask to record the proceedings. As a manager, you may feel reluctant to allow this because of concerns that it may make participants uncomfortable and subsequently unwilling to contribute fully. In some cases, managers worry that their comments could be used against them in the future.
This article outlines some of the considerations to bear in mind when faced with such a request.
Why might an employee want to record a meeting?
Employees typically make a request to record a meeting when they feel they have been treated unfairly. They may believe that the contents of the meeting will provide them with further evidence of unfavourable treatment. This might then be used in anticipation of an employment tribunal claim.
One important consideration employers should bear in mind is that members of staff have no legal right to record internal meetings. However, before automatically dismissing the request, the individual should be asked why they want to record the meeting. For instance, is it because they suffer from a disability that makes taking notes difficult? In these circumstances, you would need to consider whether this would amount to a reasonable adjustment.
What should the employer do?
If you’re reluctant to allow the recording, there may be alternative approaches that are suitable. For example, if the employee is accompanied, this individual could take notes for the employee. Alternatively, a dedicated minute taker could be engaged to transcribe the discussions for use and reference by all parties.
In any case, you would need to ensure that you weren’t placing the employee at a substantial disadvantage by not allowing them to record the meeting.
Where you wish to prohibit the recording of meetings, we would advise including a statement to this effect in relevant policies, particularly disciplinary and grievance procedures. Following this, employees should be reminded at the beginning of a meeting that recording the proceedings would be a breach of company policy. It should be made clear that doing so could potentially amount to an act of misconduct.
If permission to record the meeting is granted, then you want to require a copy of the recording. In addition, it would be worth obtaining written confirmation that the employee won’t broadcast the recording in any way, including putting it on the internet.
Another approach could be for you to record the meeting yourselves and provide a transcript for the employee.
What if the employee records the meeting covertly?
Keep in mind that if requests to record meetings are turned down then it can increase the likelihood of covert recordings being made. You won’t be able to search the employee for a recording device and the availability of smart phones makes this relatively easy for employees to do.
If a covert recording uncovers a serious concern such as bullying or harassment then the Company will need to address the issues identified regardless of whether the evidence was obtained in breach of a Company policy. You may need to take the view that a covert recording was the only way that evidence could be obtained.
In other circumstances, it may be appropriate to take disciplinary action against individuals who have made covert recordings without adequate justification. This would require a thorough investigation into the employee’s reasons for making a covert recording. Clearly you would be in a stronger position if you have a clear policy prohibiting the making of covert recordings and have highlighted that disciplinary action could be a consequence of breaching this policy.
Can covert recordings be used as evidence against an employer?
Covert recordings have been allowed to be submitted as evidence in Employment Tribunals. Employers have tried to raise human rights objections to prevent this from happening but this defence would be based on the manager claiming that their right to a private or family life was being interfered with. This would seldom be the case in a work related meeting. Tribunals have even allowed the private deliberations made by grievance and disciplinary panels, when the employee was not present, to be submitted as evidence.
Managers would be advised to exercise caution when conducting meetings. Open and honest conversations with employees can still take place but care should be taken to avoid saying anything that could be deemed to be unfair or discriminatory; after all you just don’t know if your discussion is being recorded.
If this article has raised any issues for your organisation then please don’t hesitate to contact us on 01271 859 267.
