Covert recordings of HR meetings by employees

The covert recording of HR meetings by employees is often a vexed question. In particular, issues can arise when an employee secretly records a grievance or disciplinary hearing and then seeks to rely on it, either to amend the summary notes of the meeting prepared by the employer or as evidence in any subsequent legal proceedings.

The Employment Appeal Tribunal has recently given guidance on this issue.

In Phoenix House Ltd v Stockman UKEAT/0284/17 the employer sought to have the employee's compensation reduced to nil on the basis that the employee had secretly recorded a meeting with an HR representative. The EAT rejected that application in this instance but gave some guidance:

• Covert recording of a meeting does not necessarily undermine the relationship of mutual trust and confidence between the parties. Such recordings might take place for a variety of reasons, which are potentially legitimate – to keep a record, to protect the employee from risk of misrepresentation, or to enable them to take legal advice.
• The position above might be different if the employee had an ulterior motive, such as wishing to record confidential information about the company or other people with the intention of entrapment and use against the employer.
• It is good practice for the parties to communicate at the outset an intention to record a meeting and it would generally amount to misconduct not to do so.
• It is relatively rare for covert recordings to appear on a list of examples of gross misconduct in a disciplinary procedure.

Comment

There is no obligation to allow an employee to record a meeting. Notes of an HR related meeting (disciplinary/grievance) do not need to be verbatim, but should be an accurate summary. If not recorded, notes should be prepared by a separate note-taker (who can then also act as witness as to what was said), written up immediately and sent to the employee for approval. The benefit of the employer recording the meeting is that, if any part of the summary note is later challenged as inaccurate, that particular element can be checked against the recording. The EAT judgement in Stockman might encourage employers to include the prohibition on covert recording as a specific example of gross misconduct. Even then, should an employee breach that rule, it will not necessarily mean that it would be fair to institute separate proceedings leading to summary termination; each case will depend on its own facts, particularly the reason the employee gives for why they breached that rule.