With most people owning a smartphone these days, it may be tempting for employees to record any significant conversations they have with their HR managers. Is this allowed? Kathryn Fielder, senior associate, advises.
1. Are employees allowed to record conversations with HR?
There is no hard and fast rule as to whether employees are allowed to record conversations with HR or not as there is no legislation in relation to this issue. However, generally, if an employee is going to record a conversation they should do so openly and notify their employer of the intention to do so.
In the event of covert recording, it used to be the case that it could be assumed that such a recording would be inadmissible as evidence in any tribunal proceedings.
However, in 2006, the decision in Chairman and Governors of Amwell View School v Dogherty UKEAT/0243/06 was that the recording was admissible for the part which the employee was present but any parts where the employee was not present (for example where a panel has requested time to deliberate) were not admissible. It was acknowledged by the tribunal, however, that if the claim had involved discrimination their decision may have been different and they may have found the entire recording to be admissible.
Every case will be decided on its own merits and ultimately, an Employment Tribunal will be likely to decide that a covert recording is admissible as evidence where it is in interests of justice and fulfils overriding objective to allow it as evidence in proceedings.
2. If so, when and how may they use these recordings?
An employee may take recordings where they are present if they have obtained the consent of the other parties to the meeting. These parts of a recording may be admissible for tribunal proceedings in so far as they are considered relevant.
In Punjab National Bank (International) Ltd and others v Gosain UKEAT/0003/14, the employee's recording of private comments of the panel was admissible because the comments were not part of the deliberations at the grievance and disciplinary hearings. They were recorded during breaks in the hearings. The recordings included the managing director giving an instruction to dismiss Ms Gosain, and the manager hearing the grievance saying that he was deliberately missing out the key issues raised by Ms Gosain in her grievance letter. It is quite clear in this case why the tribunal may have been persuaded to allow this recording as evidence, giving consideration to the interests of justice and overriding objective.
3. If not, what should HR do if an employee wants to record conversations?
The starting point for HR, if they do not want employees to record conversations is to make it very clear in their policy that the recording of meetings is expressly prohibited or only allowed with the consent of all parties. However as described above, in the event of covert recording which the Employment Tribunal consider to be relevant, the tribunal; will consider whether it is admissible as evidence or not in accordance with the principles of justice and the overriding objective.
In general, therefore, HR staff should operate on the assumption that they could be recorded in meetings and that any recording might be allowed as evidence by a tribunal.
In the event that recording meetings covertly is contrary to company policy, it is advisable to remind an employee at the beginning of a meeting that they must not record it, in accordance with company policy and ask them to confirm that they are not doing so.
