Mark Pentecost: Workplace recordings a hot potato

bile phones can be used to covertly record meetings.
bile phones can be used to covertly record meetings.

In my last column I talked about an employee who made a secret sound recording of her disciplinary hearing at the bank where she worked She also recorded the private management meeting relating to it.

Despite the employer’s objection, the Employment Tribunal allowed the recordings to be used as evidence at the Hearing for discrimination that followed.

It seems that this kind of monitoring in the workplace is becoming something of a hot potato at the moment, and I have been asked about what would happen if it was the employer who recorded discussions in this way. Undoubtedly questions about the misuse of technology to record conversations in the workplace will become more common as technology becomes more sophisticated and also easier to conceal.

Employers should be very careful indeed when considering making covert sound recordings of employee meetings.

Any recordings of this nature, once made public, may lead to allegations of breach of trust and confidence by the employer and could have wider ramifications in terms of damage to morale in the workplace.

Employers may make these kind of recordings but only in very exceptional circumstances can they record meetings covertly without breaching the Data Protection Act 1998. The Information Commissioners’ “Employment Practices Data Protection Code” suggests that recordings should only be for a specific purpose, and where possible employees should be notified in advance that such monitoring may take place.

The code also states that information obtained through covert monitoring is used only for the prevention or detection of criminal activity or equivalent malpractice.

An employer should disregard and, where feasible, delete other information collected in the course of monitoring unless it reveals information that no employer could reasonably be expected to ignore. This may prove to be very difficult.

It can be advantageous for an employer to suggest to an employee that the meeting is recorded so that that there is an accurate record of the discussion.

This has the clear practical benefit of making it difficult for disputes to arise about the accuracy of notes made at that meeting. It can also help to prevent either party becoming aggressive or obstructive.

However, a disadvantage is that the parties may not feel able to speak freely if they know they are being recorded and the discussion may fail to come to a satisfactory conclusion as a result.

Employers would be well advised to set out clear rules in staff handbooks and disciplinary and grievance procedures, as well as at the start of any meetings.

It should be made explicitly clear that employees are not permitted to make recordings of hearings, especially when made covertly.

Before sensitive meetings employers should consider asking employees to switch off mobile phones and all electronic devices, and remind the employee that all recordings are forbidden (although this will not necessarily protect the employer as any recording could still be used as evidence depending on the discretion of the Tribunal).

In case the employee is still recording the meeting, despite the prohibition, employers should always take care to ensure that all discussions during, and relating to, any hearing are appropriate.

When deliberating in private, the panel should keep a confidential note of any reasons for their decisions which can later be used to defend any allegations such as discrimination that may arise in the future.

Employers need to ensure that their managers are adequately trained on how to conduct sensitive meetings and be aware of the potential risks in recording of the meeting, in secret or otherwise, by either the employer or employee.

As always, if there is any doubt, expert legal advice should be sought.

Mark Pentecost is an assistant solicitor at Sanderson McCreath and Edney in Berwick.