Generally speaking, employees in the UK are not permitted to record formal meetings, such as grievance or disciplinary meetings, but recent tribunal decisions have cast a light on how employers can be affected when employees choose to do this.
What is covert recording?
Covert recording refers to when employees record meetings without a companies consent. Sometimes employees convertly record disciplinary or grievance meetings with a view to being able to use this as evidence at an employment tribunal.
When is recording allowed?
This is often a bit of a grey area when it comes to Emplpyment Tribunals. Generally speaking employees shouldn't be doing this and doing so could result in the person being disciplined but there have been some exceptions to this general rule of thumb. There are no specific laws in the UK which stop employees recording meetings, but there may also be data protection implications for those who take the risk and record meetings. In most cases covert recordings are unlikely to be admissable in Employment Tribunals.
What has recent case law shown?
In the case of Punjab National Bank v Gosain, the claimant secretly recorded a grievance meeting before she resigned. The recording included discussions that took between the grievance panel members when she had left the room and captured derogatory comments about her by the panel. The claimant sought to enter the covert recording into evidence, but the respondent objected, claiming that the recording was inadmissible because the panel discussion was private and, in accordance with public policy, they had the right to deliberate the grievance to reach an outcome.
The ET rejected this argument and the respondent appealed to the Employment Appeal Tribunal (EAT). Upholding the earlier decision of the ET, the EAT found that the covert recording was admissible in these circumstances because the recording had captured comments that went far beyond ‘deliberation’ of the claimant’s grievance and therefore were not worthy of protection. The recording was therefore relevant to the claimant’s claim and admitted into evidence.
On the flipside, however, In the case of Phoenix House Ltd v Stockman the ET decided (and its decision was subsequently endorsed by the EAT) to reduce the compensation for unfair dismissal because of the claimant’s covert recording of the respondent (albeit, it was stressed that whether a reduction would be appropriate and, if so, at what level, would always be heavily fact-sensitive).
What should employers do?
Whilst it's a bit of a grey area we always advise our clients to be up front about their stance on recordings. That way if there's ever a debate you can point to the relevant policy that makes your stance clear. We always suggest that employers cover this within the disciplinary and grievance policies with a caveat that employers may allow recording where it would represent a reasonable adjustment for the employee, such as if they have a disability, and in those cases that the Employer will make the recording and provide the employee with a copy. We always say dont have policies that are silent on these points, be upfront and manage every ones expectations explicitly stating that if the rule is broken individuals could be subject to disciplinary action.
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Disclaimer
All information within the post is provided for guidance only; always seek your own legal advice.
The information with this post was correct at the time of publishing, December 2023 but may be subject to change.