15 Nov 2018
Recording conversations at work is a legal grey area that the Employment Appeals Tribunal (EAT) is continuing to work hard to clarify when it encounters exceptional cases.
When one of your employees makes a covert recording of a conversation at work in the UK, they’re probably going against company policy and could be liable of a misconduct offence. And if they’re recording colleagues at work, they’re likely to destroy any working relationship they had with those colleagues. However, this doesn’t mean that if they present the recording as evidence at a tribunal, the tribunal will automatically not admit it as evidence.
In almost all cases, the employee who recorded the meeting or hearing must have been present.
Private recordings, such as that of a disciplinary panel, without the employee in the room, are unlikely to be admissible. The most notable exception is Punjab National Bank v Gosain.
Certain factors will determine whether it becomes evidence, such as:
- The recording’s relevance to the tribunal.
- Whether there is also a transcript.
- Discrimination within the content.
Is it legal to record conversations in the workplace in the UK?
As an employer, if you want to record conversations at work, you should seek to do so by acquiring the consent of the person you’re going to have a conversation with (for example, one or more of your staff).
And remember, with GDPR’s vigilant rules on data, you need to:
- Inform anyone you record about the specific purpose of the recording.
- Get their specific consent, such as through a fill-out form, which they must sign.
An employee must give their consent freely. And you should go through this consent process for each conversation you record—never presume that because someone consented to you recording conversation A, they’ll automatically consent to the recording of conversations B, C, and so on in the future.
Your personal business preference might be to make recordings of meetings at work, to later convert these into full transcripts—this can be a useful tactic for having a fluid discussion without someone having to focus on writing minutes or taking notes.
If this is your preference, you should state in your relevant policies that you want to record conversations in an overt way, and will look to acquire the consent of attending persons.
Some instances where you might want to record a conversation (overtly, remember) include:
- Disciplinary proceedings.
- Grievance proceedings.
- Performance review meetings.
- Board meetings.
- Management meetings.
Can employers record conversations at work when the employee doesn’t consent?
We advise that where possible, if someone doesn’t consent to you recording meetings at work, you accept this and do not record the meeting(s).
What about covert recordings—can employers do those?
Our advice remains that you should be transparent and honest about recording conversations. Make it clear in your company documentation when you might want to record a conversation. And seek consent.
Otherwise, assigning someone to take notes during a conversation is another way of ensuring that what all parties say has some form of recorded evidence.
Both parties can agree on written notes after the meeting—they could sign to declare they consider the notes are correct. One or both parties might want to make amendments to the notes—this should go on until both parties agree.
An employment tribunal is likely to treat an employer in a more judicially harsh way than they would an employee.
To start with, the tribunal will likely deem any covert recordings belonging to an employer to be inadmissible during the tribunal case—this means they won’t count as evidence and normally won’t even reach the panel.
If an employee finds out that you recorded a conversation without their consent, they might be able to make a claim based on the breach of their privacy under the Human Rights Act 1998.
Although in some circumstances, a person’s position will waive their right to privacy because they’re acting in a public role.
Be clear with your stance on recording
The UK law on recording conversations evolves depending on the facts presented at each case, with judges having to remain vigilant to advances in technology, as well as how relevant or not a piece of covertly recorded evidence might be in a given case.
We recommend that you train your managers and HR staff to expect that your employees are covertly recording conversations in the workplace, and that a tribunal could allow those recordings as evidence at a later date.
Make sure your stance on any conversation recording is clear in your policies—this goes for audio and visual recordings. Your best bet is to disallow recordings unless all parties consent to the recording. Before a meeting begins, remind all participants of your policy.
If you agreed either at the start of the meeting, or before it, that no one would record any part of the meeting, you should ask all members to confirm that they’re not doing so. If they later try to use a recording following this lie, they could be guilty of a separate misconduct act. And while a tribunal could still listen to what they record, their credibility will be at risk in the eyes of the tribunal.
As always, make sure all staff have copies of the company handbook, which is where you should keep your policies. Whenever you update a policy, email round the new version of the handbook.
Talk to an Expert
For more information about recordings in the workplace, speak to a Croner employment law expert on 01455 858 132.
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