Hello – welcome to Employment Law Matters.

  And it’s Xmas week – what are you doing

listening to podcasts? 0:18

START HERE: 0:22 thought this week I’d cover something really practical which creates a
lot of hassle - recording meetings at work. Contemporaneous notes are all well and good, but
can anything really beat a recording of a meeting between and employer and employee?
Often employers are reluctant to record meetings, but you shouldn’t be! 0:50

CUT THIS: [WAFFLE ABOUT REVIEWS]

INSERT REVIEW:  I was recently recommended these Podcasts and now have discovered
‘binge listening’! I have listened to the back catalogue twice. As a HR Consultant it is
reassuring to get sound advice on such a variety on topics - Kernow Maid

[end waffle]

1:47
RESUME HERE

[INTRO]

There is nothing to stop an employer and employee agreeing to record an internal meeting,
whether a disciplinary, grievance, investigatory or any other. I record most meetings and then
use a transcription service, rev.com, 2:21

$1 per min. Rayvee - insert here: UPDATE Rev now charges $1.25 per minute, so a 30
minute disciplinary meeting would cost $37.50 to transcribe. 2:38

Continue with the rest of what I say, but cut the 'I've got a special link... 10 minute recording
transcribed for free - bit.ly/transcripts2019'

3:19: AND INSTEAD DISPLAY:Link in Shownotes Below

3:22: Tell the employee why you want to record the meeting. Explain what you would like to
record, how you would like to do it, how you would store and use the recording, and who
would be allowed access to it. And get the employee’s written consent. You will be
processing personal data, so the usual rules about data protection apply.
My advice to employers is that if a meeting is to be recorded, it is usually better to take
control of that. Use your own equipment and ensure that the recording and any transcription
is safely stored.

Done

Covert recording

The far less straightforward (some would say sneaky) approach is to record the meeting
without telling the other party that you are doing so. There will be various reasons, but they
usually hinge on a need to capture evidence.

Employers must have a really good reason to record their employees without their
knowledge. It is usually only in cases of suspected criminal activity that deploying a
recording device would be justified. By far the better approach is to be upfront.

The situation is a little different if it is the employee doing the recording.

An employer might never know that the recording has taken place because (a) it does the
employee no favours, or (b) the employee is happy with the outcome of the meeting.

However, if a tribunal claim ensues, the likelihood is that a recording that supports the
employee’s case will be produced. The bad news for an employer who made an ill-advised
comment during the meeting is that tribunals are generally prepared to allow these types of
covert recordings to be relied on in evidence  - if their content is relevant.

It may be different if the employee had left the recording device running so as to capture
private conversations that took place while he or she was not present (the disciplinary panel’s
decision-making discussion, for example). I would usually expect that to be inadmissible.
However, in a discrimination case, if the recording provides the only and incontrovertible
evidence of discrimination having taken place, a tribunal may allow it.

It has also been held that an employee could rely on a covert recording of the discussions
between panel members during breaks in his disciplinary hearing, without which evidence it
was not possible to properly assess the decision to dismiss. But any evidence covered by legal
professional privilege was not admissible. (Fleming v East of England Ambulance Service
NHS Trust.)

Given the possibility that private deliberations could be recorded, and in some cases used
against employers, you should ensure that that risk is understood by managers and others who
run internal meetings.

Disciplining for covert recording

The starting point, as usual, is the disciplinary and grievance policy. If that expressly
prohibits the recording of hearings and meetings and spells out the possible sanctions for
breach, you have the basis on which to take some action. The reasonableness of that action
would depend on the circumstances, so be careful to establish the employee’s reasons for
taking the serious step of going behind your back and breaching company policy. Consider
what the employee was hoping to gain from the recording and whether disciplining him or
her could give rise to a(nother) potential claim against you. I’m thinking victimization.

But is covert recording a breach of trust and confidence? It is a question recently considered
by the Employment Appeal Tribunal in Phoenix House Ltd v Stockman.The employee had
been dismissed following the breakdown of the employment relationship. She later produced
a covert recording of her meeting with HR and went on to win various tribunal claims,
including for unfair dismissal.

One of the points argued by the employer was that making a covert recording breached the
implied term of trust and confidence because it was dishonest conduct designed to obtain an
advantage for the employee. However, the EAT found that the tribunal was right to assess all
of the circumstances. Ms Stockman had not tried to catch her employer out. She had simply
recorded a meeting concerned with her own position rather than the confidential information
of the business or other people.

The EAT set out some helpful observations and guidance on recordings:

1. It is not now uncommon to find that an employee has recorded a meeting without
saying so.
2. A recording is not necessarily undertaken to gain a dishonest advantage. It may have
been done to keep a record; to protect the employee from any risk of being
misrepresented when faced with an accusation or an investigation; or to enable the
employee to obtain advice from a union or elsewhere.
 3. A tribunal is not bound to conclude that the covert recording of a meeting necessarily
undermines the trust and confidence between employer and employee to the extent
than an employer should no longer be required to keep the employee.
4. The purpose of the recording will be relevant. Is the employee highly manipulative or
confused? Is he or she vulnerable and seeking to keep a record or to guard against
misrepresentation?
5. The extent of the employee’s blameworthiness may be relevant. Has the employee
been told that a recording must not be kept? Has he or she lied about making the
recording?
6. The subject matter of the recording will also be relevant. Is it a meeting that would
ordinarily be recorded in some form anyway? Is it a meeting about highly confidential
business matters? Was personal information about another employee discussed?
7. It is still relatively rare for covert recording to be listed in disciplinary procedures as
gross misconduct.
8. It is good practice for an employee or an employer to say if they intend to record a
meeting, except in the most pressing of situations. In ordinary situations, failing to
mention it will generally amount to misconduct.
9. If a meeting is long, a summary or note will sometimes be of far more value than a
recording that may have to be transcribed.

A few points to highlight.

Firstly, a covert recording by an employee will in ordinary situations generally amount to

misconduct. Employers should check disciplinary policies to ensure that this is adequately
dealt with  - consider listing it as an example of gross misconduct - and communicated to
staff.

Secondly, the fact that an employee has secretly recorded a meeting will not necessarily
undermine mutual trust and confidence. Finally, even though the employee may have acted
improperly in making a covert recording, that recording could still be admissible at tribunal.

This can be a tricky subject to navigate, and the facts will be all-important. The safest
position for any employer is to have nothing to fear from their words being replayed. Key to
this, in my view, is to have excellent policies and processes, and managers who understand
exactly what to do and say, and what to avoid, during meetings with employees. 11:31

Rayvee - end it here, and cut the rest, apart from the disclaimer at the end.