Do I have to allow an employee to digitally record a disciplinary or grievance meeting if they ask to do so?
These days, most of us have in our pocket a mobile phone which is capable of digitally recording a conversation. It is perhaps not surprising therefore that we increasingly get asked by our clients whether they have to agree to an employee’s request to record an internal meeting, such as a disciplinary or grievance meeting. Greg Burgess, Partner in the Employment team at DMH Stallard, explains how you should deal with any such request.
Can you refuse?
Yes, you can. As long as you are confident that you are going to be able to produce an accurate minute or note of the meeting, then there is no reason to agree to allow the employee to record it.
You must give the employee the right to be accompanied to the meeting by a colleague or trade union representative, whose role in part should be to take a note of the meeting for the employee to refer back to. If the employee comes to the meeting unaccompanied, and asks instead to record the meeting, then you still are not obliged to allow them to record it. You might suggest allowing regular breaks to allow them to keep their own contemporaneous note.
The only circumstance where it may be prudent to agree to their request might be if they had a medical condition which prevents them from taking a note for themselves, and where they have not been able to find a colleague to accompany them. This may be considered a reasonable adjustment.
If they covertly record the meeting, can they later rely on the recording in a subsequent Tribunal claim?
Yes, potentially. Tribunals take a fairly employee-friendly approach here – if the recording contains evidence that is relevant to the claim before them, then it is quite possible the Tribunal will agree to that recording being admitted as evidence.
What can we do to pre-empt any request to record meetings?
It is advisable to make clear in your disciplinary policy that employees are not allowed to record internal meetings (including disciplinary and grievance meetings). You should also ask them to confirm at the start of the meeting that they are not recording it.
Can we take disciplinary action against an employee if we find out that they have covertly recorded a meeting?
Yes, particularly if you have made it clear in your disciplinary policy that no covert recordings should be made of any internal meetings. In a similar vein, it was recently held in the case of Phoenix House Limited –v- Stockman that a Tribunal was right to reduce the employee’s compensation by 10% after she covertly recorded an internal meeting.
Can you as the employer record the meeting?
There is nothing to stop you recording the meeting yourself, provided you make clear to the employee that they will be provided with a copy of the recording.
If you would like to discuss anything further in relation to disciplinary and grievance policies and procedures, please do not hesitate to contact Greg Burgess for more information.