Can Employees record disciplinary meetings in the UK?

Employment lawyers in the UK are often asked if employees can secretly record disciplinary meetings with their employers.

It is very easy for someone to secretly record a meeting using their mobile phone. In employment matters, employees and employers must consider the risks of recording a disciplinary meeting without consent or the other party’s knowledge.

The general rule in English law is that if evidence is relevant to the issues in the case, then it can be given at trial (in the employment tribunal or court).

In the case of Vaughan v London Borough of Lewisham it was held that where a party wishes to rely on covert evidence at trial, it should make a specific application to the Employment Tribunal seeking permission to do so. The party would need to provide a transcript of the evidence in question and explain its relevance.

Please call us on 01707 329333 or email law@crane-staples.co.uk if you have any queries about the content of this article.

Can an employee secretly record a disciplinary meeting in the UK?

The overriding advice to employees in these sorts of situations is to take great care and to consider very carefully before secretly recording a disciplinary meeting.

In the case of Phoenix House Limited v Stockman (2019), explained below, the Employment Appeal Tribunal (EAT) stated that they:

"considered it good employment 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 - and it will generally amount to misconduct not to do so".

An employee may wish to record a disciplinary meeting for several reasons, for instance:

• If they are attending the disciplinary meeting alone, they may wish to have a record of events;
• They may not be able to take written notes during the meeting;
• The employee may become flustered or worry that they will not understand or remember what is said;
• A secret recording of a disciplinary meeting may enable them to obtain subsequent legal advice; and
• A recording could help protect them from being accused of misrepresenting their position.

An employee who secretly records a disciplinary meeting will usually only be allowed to put forward the part of the meeting at which they were present.  If they recorded parts of a disciplinary meeting which were said to be confidential e.g., when the employer’s panel “retired” to consider their decision, that information is unlikely to be admissible. This was held in the case of Chairman and Governors of Amwell View School v Dogherty. 

If an employee secretly records a disciplinary meeting for the purpose of entrapping the employer into saying something inflammatory or which will improve the employee’s case, the tribunal may well not be so sympathetic.

Phoenix House Limited v Stockman (2019)

The case of Phoenix House Limited v Stockman (2019) heard by the Employment Appeal Tribunal considered the reasons why an employee might wish to covertly record a meeting.

The EAT felt that the motivation for the recording will be very important and considered the employee's motives for secretly recording the meeting:

“The purpose of the recording will be relevant; and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation.”

The EAT held that the employee had made the covert recording because she was flustered during the meeting, not to entrap her employer.

However, the employer argued that the recording by the Claimant was a breach of the implied term of trust and confidence and that her compensation award should be reduced.

The Employment EAT held that the employee had been unfairly dismissed, but her compensation was reduced by 10%.

The EAT held that it was good practice for a party to alert the other party they intended to record the meeting and it would probably be misconduct not to do so. However, it would not generally amount to gross misconduct or a breach of the implied term of trust and confidence.

Can an employer record a disciplinary meeting in the UK?

There are risks associated with an employer recording a disciplinary meeting. The same considerations in Phoenix House as mentioned above apply to an employer as to an employee.

The employer and their representatives may feel constrained in what they can say. They might not cover the issues that need to be dealt with.

Being recorded can be an uncomfortable experience for some people.

It is usually preferable for an employer to have a scribe present who can take a good written note.

Is recording a disciplinary meeting gross misconduct?

Recording a meeting is not necessarily gross misconduct. Unless, the employment handbook or disciplinary policy says it will be treated as such. Employers should ensure their staff handbook/ disciplinary procedure states that secret recordings should not be made.  Such a policy should also state that recording disciplinary meetings will be treated as gross misconduct. The policy should explain that this could lead to dismissal.  Without that, a secret recording will probably not automatically be deemed to be gross misconduct.

If you are an employer and require assistance with producing robust staff handbooks, procedures and policies, please contact us for advice.

Is it illegal to record a disciplinary meeting?

Processing of personal data “by an individual in the course of a purely personal or household activity” does not come within the provisions of the UK GDPR.  On that basis, an employee who records an HR meeting would not be subject to the UK GDPR.

However, the central question will be what is the purpose of the recording? Is it purely for personal benefit? For example, to assist the employee with preparing their case later on, or just as a record of the meeting?  If so, it is unlikely the employee will fall foul of the UK GDPR.

Human Rights Act

A secret recording of a meeting between an employee and employer in a HR/disciplinary setting may be a breach of the Human Rights Act, Article 8 - the right of respect for private and family life.  However, the HRA 1998 can only be enforced against a public authority. That is only likely to be a consideration where the employer is a public authority. For example, an organisation that carries out public functions.

Potentially, in a private commercial setting, an employee who secretly records a disciplinary meeting and then publishes that recording might also commit the tort of misuse of private information.  This is a relatively new tort, which has only developed over the last few years. Potentially, an employer could apply for an injunction to restrain disclosure of the recording in the public sphere. Although, if the information recorded was relevant, it is unlikely that such an injunction would be granted.

Furthermore, it is highly unlikely that an injunction could be obtained, if the recording is only made available for use in legal proceedings. The key test for this tort is whether the information recorded was obviously private.  Did the people involved in the meeting have a reasonable expectation of privacy? Would disclosure of  information about the individual concerned give substantial offence to someone in similar circumstances?

Recording disciplinary meetings – ACAS guidance

ACAS has lots of useful information on how to conduct a disciplinary meeting:

https://www.acas.org.uk/disciplinary-procedure-step-by-step/step-4-the-disciplinary-hearing

Are disciplinary meetings confidential?

Yes, disciplinary meetings should be treated as confidential by both parties.  Only employees who need to be involved in the investigation/meeting should have access to these records.

Where should a disciplinary meeting be held?

Disciplinary meetings should usually be held in the employer’s premises, where the meeting can be held in confidence.  In some cases, this might not be practical so the meeting could be held “off-site”. Still, it should be somewhere that is not unduly onerous for the employee to attend.

Summary

In summary, an employee may be able to use a recording they made secretly at an Employment Tribunal. However, the recording must be relevant to the issues in the case.  Nonetheless, Judges do not look kindly on those who do it. The employee’s compensation may be reduced if they win their case. This depends on the reason for the employee making the recording. The issue as to whether an employee should record a meeting is complex. It may be more trouble than it is worth!

Your local Employment Lawyers

We are specialist employment lawyers in Welwyn Garden City. If you are an employee or employer requiring advice about recording disciplinary meetings, we would be happy to assist you. We can also advise on other employment issues. Please contact us on 01707 329333 or email law@crane-staples.co.uk to get in touch. We look forward to hearing from you.