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Covert recordings in the workplace

July 09, 2019

Requests to record meetings by employees are often made when the employee/employer relationship is starting to deteriorate – and is usually a sign of a breakdown in trust.

The types of meetings that employers will usually consider recording are disciplinary meetings, grievance hearings, redundancy consultation meetings, and return to work interviews. One of the drivers for such requests is to create an objective record of what was discussed in the meeting to assist if there are any disputes later on – such as a disparity in the notes of the employer and the employee – during any tribunal proceedings.

But what about a situation where you discover that an employee has – without your knowledge or permission – covertly recorded a meeting? Should employers consider that to be misconduct?

The recent case of Phoenix House Limited v Ms Tatiana Stockman, the Employment Appeal Tribunal (EAT) held that it was good practice for an employee or an employer to say if there is any intention to record a meeting “save in the most pressing of circumstances” – such as for a vulnerable employee seeking to keep a record of the meeting, or to guard against misrepresentation – and it will generally amount to misconduct for an employee not to do so.

The EAT observed that this practice will allow both sides to consider whether it is desirable to record a meeting, and if so, how. The EAT mentioned that it is not always desirable to record a meeting, as it will sometimes inhibit a frank exchange of views.

Comment from the employment team at ebl miller rosenfalck

The Phoenix House decision gives some helpful practical guidance to employers and employees. However, there are other important practical matters to take into consideration, such as:

  • Considering what is already set out in the Company’s existing HR policies;
  • Considering whether the employee has a medical condition which makes it difficult for him/her to take a written note of the meeting; and,
  • The ACAS guidance regarding the conduct of workplace investigations.

GDPR implications – Another important consideration is the impact of the GDPR, specifically:

  • Whether the recording will include personal data relating to the employee and/or other employees (which is very likely);
  • Whether a lawful condition for processing applies;
  • Whether sufficient information has been provided to the individual as to how that personal data will be collected and processed; and,
  • Whether the recording includes special categories of personal data, and if so, whether a specific condition for processing applies.

The material contained in this guide is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© Miller Rosenfalck LLP, July 2019

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