There may be incidents in the workplace where an employee would want to make a recording of a meeting or interaction for several reasons. This may be when the employee feels like s/he has been mistreated and either wants to gather evidence of that treatment or – if s/he is the subject of allegations – to defend him or herself from the mistreatment. In this digital age, smartphones and other portable recording devices are easily accessible, and therefore it is a lot easier for the employee to record a meeting, with or without your knowledge.

If your employee has requested to record a meeting, you do have the right to decide whether s/he can do so or not. However, if an employee makes a covert recording, i.e. they record an internal meeting or interaction without your knowledge, then how do you respond to this situation? Should you take steps to outline the rules that apply to covert recording? And, can these standards be used in all circumstances? What is your position if an employee tries to rely on a covert recording in a claim, even when they have breached the rules?

To start with, it is pertinent as an employer to note that:

An employee does not have a legal right to record an internal meeting.

If an employee has recorded a meeting without your knowledge, then this is classed as a breach, and you should consider addressing this risk to prevent future covert recordings in the workplace. This is what we will be focussing on in this article and how we at Simplify ER can ensure you are protected from covert recordings, by having a well written and communicated policy in place.

Let’s dig in a bit deeper.

What can you do to ward off issues of covert recordings before it happens?

It is strongly advisable to have a written policy in place, which may not be enough on its own. This policy needs to be clearly communicated to your employees, so they understand where you stand on covert recordings in the workplace. You can have the policy written in the staff handbook or hold training sessions, which includes your policy on covert recordings and how they are impermissible. Also, make mention of the policy in grievance and disciplinary procedures and make a point that any recordings made during these internal meetings or anywhere in the workplace are in breach of the policy and will be grounds for a disciplinary action.

You can also ask the employee to make a signed declaration that they will not record any meeting that happens in or related to their employment and, to further protect yourself, you or a chairperson of the meeting should make it clear to the employee at the beginning that any recording is a breach of your policy.

Please note that you are not permitted to search an employee to check whether they have a recording device on them. If, however, the employee refuses to confirm or s/he is recording the meeting, then it is within your right to adjourn until you decide what your next steps are.

Are there any other key factors to consider when having a written policy in place?

You will need to make reasonable adjustments for disabled employees if their disability puts them at a significant disadvantage of taking written notes and, therefore, a recording would be allowed as a fair adjustment. Alternatively, perhaps you could allow them more time to take note of the meetings or bring a note taker to make written record on the employee’s behalf.

What if an employee leaves a recording device in a room or they have it on themselves in a meeting?

If you have a written policy in place, then the employee has made a breach, and you can start the disciplinary process against them. If, however, you do not have a written policy regarding covert recordings, then it would be advisable to suggest a formal meeting with the employee to discuss why they recorded the session in the first place. Reiterate that any recordings are not permitted and that covertly recording a meeting is a violation of your privacy rights, which may lead to the employee being liable to misconduct and this may trigger the start of your disciplinary procedure. Also, make a note to the employee that their credibility may be weakened in the eyes of the tribunal if they were to bring a claim against you.

What if you have covertly recorded your employee in a meeting?

The same rule applies to you as an employer. You must have regard to your employee’s right to respect for private life, and should you wish to record a meeting, you must seek your employee’s consent first.

Can an employee bring a claim to the tribunal using the recording as evidence?

Covert recordings can be inadmissible during a claim against you. However, changes to the law now state that:

The tribunal will only consider how relevant that covert recording is as evidence to the employee’s claim and whether that employee was present at the meeting

The tribunal will weigh the evidence up against the need to ensure confidentiality of your private deliberations in that meeting. Moreover, although, ‘deliberations’ has a broad meaning, it tends to mean anything that has a legitimate focus on the issues that had to be determined.

An employee has requested to make a recording of a meeting. What are the ground rules?

If you allow for a recording to take place in a meeting, then you should make clear to the employee how to create, store and use that record. If you decide to take the recording yourself, then you can ask the employee to confirm in writing that they will not broadcast or post it on the internet, or use it for any purpose other than keeping the recording for themselves. This option also reduces the chance for the employee to make a covert recording. Test the equipment yourself and obtain technical assistance to ensure you have an accurate record of the meeting and you can hear all participants.

Other ways to protect yourself as an employer from covert recordings and future claims

Always behave as if you are being recorded, even if you are on a break with your peers and discussing other issues. It may also be pertinent to adjourn meetings overnight so that deliberations can be made outside the room that the hearing is held in. You can also ask everyone to remove their personal belongings from the room during breaks.

Remember, that the best way to protect yourself from future covert recordings is to have a written policy in place. Simplify ER can discuss and create a written policy to protect you from covert recordings in the future. If you are interested in learning more, call us now on 020 3011 0448 or email us at info@simplifyer.co.uk.

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