Recording disciplinary and investigation meetings – a good idea for employers?

Recording disciplinary and investigation meetings – a good idea for employers? Or one that could have various pitfalls? 

Following the impact of Covid-19 in the workplace, many employees now have a hybrid working arrangement meaning that employers have therefore had to adapt and be flexible with their management of staff when carrying out disciplinary related meetings, grievances, and other workplace related meetings.

We are often asked to advise on the implications of an employee covertly recording a meeting, but what about if an employer wishes to introduce a standard practice of recording such meetings? In this article we discuss general compliance considerations together with the potential advantages and disadvantages of doing so.

Recording disciplinary and investigation meetings do carry inherent risks. Audio recording appear to be less risky than video recordings as they carry a much larger risk of breaching data protection laws by revealing sensitive personal data such as age, gender, and possible disabilities.

Compliance

As a general starting point, it is important that both the employee and the employer agree to the meeting being recorded. If there are additional witnesses and companions also attending these meetings they too will need to agree to the meeting being recorded.

For an employer to comply with greater GDPR and Data Protection, the information concerning the recording and the transcripts must be treated as ‘personal data’ and must be processed in accordance with the DPA principles. Essentially it will need to be treated like any other details of an employee are kept. Recordings and transcripts must be kept securely, and access needs to be carefully considered when requested.

What are the key considerations that employers will need to consider?

On a more practical point it is important that employers understand and evaluate the effectiveness of recording these types of meetings. Audible recordings of the meeting would provide an accurate account of what was said and would avoid any potential scope of dispute in terms of accuracy.

The employer would also be able to ensure that the meeting is in their control and that they retain copies to avoid the risk of covert recording or misuse. Should a claim be brought at tribunal, an audible recording would also demonstrate transparency and would resonate confidence that the processes followed and conducted are appropriate and complaint. 

However, employers would need to ensure that managers are trained adequately to make sure that a rigorous disciplinary process is followed. Moreover, that a managers comment could eventually be played back during court or tribunal proceedings. The recording of a meeting could add pressure, and result in a nervous disciplinary chair making mistakes in the process. Training would need to be provided to managers in the storing and retention of the recordings to ensure compliance with GDPR.

It is also worth noting that the minutes of meetings tend to be more concise and focussed and in most cases, written meetings tend to be more suitable for tribunal hearings than word for word recordings which can include irrelevant and unnecessary information.

Transcripts would also need to be made following the meeting and conducting this process can prove time consuming and costly. There are AI tools and systems that can usually assist; however, we would advise against using these tools as they could also result in a breach of GDPR. It may be therefore more time consuming for employers to record meetings than to have someone attend and carry out meeting notes, especially if the sound in the recording became muffled and interrupted. Whilst sufficient and appropriate equipment would minimise this particular risk, should an employer rely completely on technology and in the absence of a note taker, it could mean that the employer is left with no record whatsoever.

Summary:

To summarise, the legal standpoint is that agreement needs to be reached by all parties attending the meeting and the recordings should be treated as personal and confidential information. From a more practical perspective, the recording of disciplinary type meetings can be used by the employer in a bid to reduce the risk of covert recording and aid transparency should a claim ever transpire to the Employment Tribunal.

However, there are many other factors which need to be considered. The process doesn’t appear to be more time efficient given that a written transcript will need to be produced and that will require time to put together, review and proofread. There is also the risk that the recording becomes muffled, or the speech becomes unrecognisable. Whilst good equipment may mitigate this issue from arising, a physical note taker attending the meeting is the only way that this issue can be completely avoided.

Notwithstanding the potential cost for equipment and the time taken to ensure managers and colleagues conducting this meeting are well trained and confident to conduct these processes, we would suggest that a good old fashioned note taker is probably the better option (at least for now!).

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