Well obviously, the answer is no isn’t it? Your policies probably say so. Why would you let that happen anyway? It will make everyone present feel more nervous and uncomfortable; you don’t know what might inadvertently come out at the meeting that could be used against you in future; a transcript of the recording might not be interpreted correctly, particularly if excerpts are used and the context is lost and, you don’t want the recording ending up on YouTube! All these concerns are perfectly logical and legitimate, but for one problem…
…It happens all the time
Even if you have a policy saying it should not. Even if you have expressly told the employee in written correspondence that recording is forbidden. Even if you ask the employee at the start of the meeting and they solemnly confirm that they are not. Believe me, it still does.
And, just because you have a policy saying that it should not happen… And the employee did not have your consent… And it might breach data protection law and your fundamental human rights… That does not necessarily stop an employment tribunal judge, focussed on ensuring that justice is done, ruling: “I’ll hear the recording” or “The transcript is admissible”.
And it doesn’t just happen when the employee is present
Ever more frequently employees are leaving their phones in rooms where meetings have taken place in the hope of recording the conversation that follows the meeting and obtaining a silver bullet of information. This material is less likely to be admissible in a legal setting, but there are still some instances where it has been permitted. Even if it is not admissible in a court or tribunal, the employee will have gained valuable intelligence on your decision making process which could be used against you.
So, with this in mind, should the mind-set that a contemporaneous and accurate record of the meeting be avoided at all costs, be adjusted for the age where making a recording is as easy as pushing a button on a device almost everyone has in their pocket?
Pros v Cons
So we’ve mentioned a few of the negatives, but are there any positives?
• There will be no dispute over what was actually said at the meeting. Time will not need to be spent writing up notes and arguing with the employee over the specifics of what was actually said (which may or may not be relevant). If the matter did end up in an employment tribunal, you would still need to make a transcript of the recording, but hopefully these occurrences should be rare. There are now many companies offering relatively cheap transcribing services that could be used in these instances.
• If the meeting is being recorded in the full knowledge of everyone present, it is less likely that you will let something slip out that you should not have said and, if it does, you will most likely qualify and explain yourself. This should promote high standards of conduct and fairness which should hopefully, in turn, reduce the prospect of you ending up in an employment tribunal.
• If you are ever unfortunate enough to find yourself in an employment tribunal, your open approach is likely to reflect well on you and enhance your credibility in the eyes of an employment judge or panel.
5 Top Tips
- Consider your approach on a case-by-case basis. In particular consider the character and views of the employee, the subject of the meeting and any special circumstances. If the employee is disabled, there may be legitimate reasons for allowing the recording to take place in any event.
- If you decide to go ahead and record the meeting, record on two devices. This should appease any concerns that the recording may be doctored afterwards. Always ensure that the employee is aware of the recording and provides their written consent. Expressly stipulate that the recording is property of the business and should be treated in the same way as all other confidential business information.
- If you (or the employee) are not comfortable with recording, get a good note taker. Let the employee read the minutes there and then and sign to say that they agree. If the minutes are illegible, write them up immediately, and only write exactly what is written (even if it does not make sense). Do not embellish, adjust or write what you meant to say, no matter how tempting it might be. This is only likely to cause you credibility issues if the matter ended up before a judge. Make clear to the employee in all correspondence that the meeting should not be recorded and any attempt to do so will be classed as a disciplinary offence, do not allow coats in the room and expressly ask the employee at the outset if they are recording the meeting.
- Always be mindful that you could be being recorded regardless of your stance on the issue. Do not have follow up discussions in the same room.
- Once you have decided your practice to be adopted, check that your policies reflect this and update if necessary.
If you would like more information, advice or staff training please contact Melanie Rowe at Murrell Associates on 01872 227006 or by email at firstname.lastname@example.org.