Can disciplinary or grievance meetings be audio or video recorded?

There could be various reasons an Employer or an employee, may wish to audio or video-record important work meetings/hearings, but there are some factors to consider which we explore here. 

During and after the COVID-19 pandemic, with many employees working fully or partly at home, video-recording  meetings become an issue. However, neither an employee nor an employer has the right to record a meeting – unless both parties agree to the recording. It’s unlikely that many employers would agree to the recording of a disciplinary or grievance meeting  (as it is unlikely that most Employers disciplinary procedures or grievance procedures would expressly allow this), but there are circumstances where it may be the right thing to do, such as if an employee has a physical or mental impairment that makes taking their own notes difficult or impossible – in these circumstances it would be reasonable to allow them to take an audio recording of the meeting, if there is no other reasonable alternative.

Why it might be a bad idea to record meetings:

Recording meetings can make all of those taking part feel uncomfortable, and may affect the way the meeting runs – it will usually be preferable to have a neutral person present to take notes, which are shared with all participants afterwards. Obviously, an employee has the right to be accompanied at a disciplinary or grievance hearing by a work colleague or trade union representative – and either the employee or person accompanying them can take notes also.

The note-takers are important in case any technology to record the meeting fails, leaving no documentation to prove what was or wasn’t said.

Employers who wish to record hearings need to consider:

• Their obligations under the  General Data Protection Regulations 2018, and there would be few exceptions under the GDPR when this would be possible. For example – the Employment Practices Data Protection Code (guidance from the DPA) 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.
• If a covert recording may breach the employees’ right to private and family life under article 8 of the European Convention on Human Rights.
• If an employer records a meeting with the employee’s consent, the information should be treated as ‘personal data’ under the GDPR and must be ‘processed’ in accordance with the DPA principles, as it would treat an employee’s personal/personnel file.
• Employers who are concerned that an employee may make a covert recording of a meeting should ask their staff at the start of a meeting whether they intend to make a recording.

Employees who wish to record meetings:

• Should ask for their employer’s permission to do this
• If an employer’s disciplinary procedure specifically bans covert video/audio-recordings, and/or an employer has told the employee that recording the meeting is not an option and an employee continues to do this, then an employer can discipline the employee for this as well (and it could be a misconduct or gross misconduct – if it was done to ‘entrap’ the employer this could be gross misconduct; if it is only done to ‘keep a record,’ this is unlikely to be gross misconduct).
• In Phoenix House Ltd v Stockman in 2020, the Employer only became aware of the covert recording by Stockman in her unfair dismissal claim. They said this meant they would have dismissed her for gross misconduct if they had known about her recording.  The original ET disagreed and said her recording was not a breach of the implied term of trust and confidence (that exists in all employment contracts).  The Employment Appeal Tribunal agreed and said to ask why the employee had recorded the meeting (i.e. the purpose of the recording), which the ET had done, was the correct approach
• Employees who record meetings covertly also need to consider the GDPR if sensitive information about other people was discussed at the meeting.
• If an employee covertly records a meeting, an employment tribunal may allow this to be used as evidence in certain situations and circumstances (although generally will not allow the private deliberations of the disciplinary panel to be used as evidence, when they are attempting to reach a decision on the hearing). Tribunals will though take a dim view of anyone who lies to their employer about making a recording, without a good reason for doing so.

Video-Recording Meetings

With many staff working from home it might be tempting for the Employer or employee to record their video meetings.

For Employers – there is a large risk that video recording any type of meeting with an employee will breach data protection laws much more seriously than solely audio-recording them.  This is because sensitive personal data will be obvious about all participants – their age, gender, ethnic origin, perhaps political opinions and health issues, disability, religious beliefs and sexual orientation – and any third parties that wander into the background of the recording at people’s homes.

The GDPR requires that you collect only data that “is necessary” and video-recording a meeting is probably going too far.  There may be times when it is suitable, but tread very carefully.

If the employee gives their explicit consent to the recording, then this may not be valid consent, as it is arguable that their consent has not been ‘freely given’ because of the power imbalance between an employer and an employee.

If you do video-record a meeting, consider who may want a copy of the recording and that you must keep the recording securely and give access to it to only those who need to know about it.