Employees’ Recording Employment Proceedings & Internal Meetings – Is It Allowed?

Due to the increased amount of technological options for easy audio or video recording, employees are often looking to record internal meetings with their employer in order to protect themselves and possibly provide them with a form of evidence in any subsequent Employment Tribunal proceedings.

Indeed, in a recent employment case, an employee sought to record their Employment Tribunal proceedings and the request had to be considered by the Tribunal.

Recording employment tribunal proceedings

In the case of Heal v University of Oxford, the Claimant in the proceedings asked the Tribunal whether he was able to record the hearing as his dyslexia and dyspraxia made is difficult for him to make a contemporaneous note of the proceedings.

The request was considered at the case management preliminary hearing, where it was dismissed. The Claimant appealed the decision, claiming that his request should have been considered prior to the case management preliminary hearing.

The appeal was dismissed by the Employment Appeal Tribunal, on the following grounds:

1. Under the Contempt of Court Act 1981, a Tribunal has a discretion to allow a litigant to record proceedings.
2. However, such permission should normally only be granted if there is a complete or partial inability to take contemporaneous notes, and that results in a substantial disadvantage to the litigant.
3. Even when permission is granted, it remains a criminal offence to publish that recording.
4. The Tribunal’s notes of evidence remain the conclusive record of the hearing (although that might change when official digital recording of proceedings becomes routine).
5. One possible adjustment for a person in the Claimant’s position is to allow time at the end of each witness’s evidence for the recording to be played back, to allow the litigant to formulate his questions and/or submissions.

This has confirmed that only in strict circumstances will a party to Employment Tribunal proceedings be allowed to record part or all of the proceedings.

This is an issue that employers often face when employees ask to record meetings or where an employer suspects that an employee has recorded a meeting without permission.

Employees recording internal meetings

Employers are often asked if an employee can record meetings or hearings and their response is usually dependent on the individual circumstances and the internal policy that the business has in place (if there is one).

In other instances, employees may choose to record the meeting without asking first, creating a recording which the employer only finds out about much later, such as when the employee brings an Employment Tribunal claim.

The general rule which the Tribunals will apply when considering whether to allow a claimant to rely on their covert recordings of meetings is whether or not the recordings are relevant to the case. If they are then they will usually be allowed in as part of the proceedings, as long as the claimant complies with the usual disclosure duties (e.g. they provide the respondent with a copy in advance of the hearing).

It will not matter whether or not the employee had the permission of all or any of those present to make the recording, whether such recordings were not permitted by the employer’s policies, or the employee was told that they were not allowed to make such a recording and did so anyway.

Here are some top tips for employers in dealing with requests from employees to record internal meetings:

1. Have a policy which says whether internal grievance or disciplinary meetings can be recorded and remind employees of this at the outset of every meeting. This might not help get the evidence excluded if it is relevant but it will damage the employee’s credibility.
2. Keep an eye out for behaviour which would suggest that the employee is recording the meeting (such as a phone on the table) and ask them to confirm that this is not the case and to switch their phone off. An employer can refuse to proceed with the meeting until they are sure that the employee is not recording it.
3. If there are breaks during the meeting, the employer can either ask the employee to remove their belongings from the room during the break or better still, the employer should retire to a different room to deliberate.
4. It can be tempting to relieve the tension of a difficult or lengthy hearing with a joke or comment about the employee or their representative once the meeting has been adjourned but think carefully about how this would sound played back to an Employment Judge!
5. Remember that comments which are made during private deliberations which are discriminatory, offensive or malicious are likely to be viewed as so relevant to a case that they should be disclosed.

How Nelsons can help

Laura Kearsley is a Partner in our expert Employment Law team.

For further information or to comment on this article, please contact Laura or another member of the team in Derby, Leicester or Nottingham on 0800 024 1976 or via our online form.