Letting employees record disciplinary conversations may be better than banning them

25/04/2019


Letting employees record disciplinary conversations may be better than banning them

It’s very easy for an employee to record things on their mobiles at work – for example, disciplinary conversations or hearings – without you knowing. And even if your staff handbook or policies say recordings are not allowed, a court will sometimes admit a recording as evidence if it’s relevant (for example, if it shows that the procedure you followed was unfair, or contains evidence of discrimination), it was disclosed to you in good time, it doesn’t breach your human rights and the person who made it was part of the conversation that was recorded.

Where the recording goes beyond the conversation or hearing itself, and includes private deliberations by, say, a manager or panel, it will usually only be allowed as evidence if no reason was given for the decision and the recording shows it might have been motivated by discriminatory considerations.

You can try and protect yourself as much as possible by pointing out at the start of a disciplinary conversation or hearing that recording it is misconduct and could lead to sanctions, including dismissal – and making a written note that you have done so. You can also provide a comprehensive note of proceedings afterwards, and if the employee does not take issue with your note at the time, it’ll be harder for them to argue their recordings should be admitted in evidence later.

But, faced with the risks that can arise if an employee makes secret recordings anyway, many employers are taking a different approach.

Instead of banning them, they are amending their handbooks and policies to allow employees to make recordings – but subject to conditions that allow the employer to control the process. For example, the conditions may say the employee must ask permission first (which you can refuse), that it’s you who decides when recording stops and starts, and that the employee must transfer the copyright in the recordings to you so that they can’t rush off to post it on social media websites in an attempt to embarrass or damage your business. It’s important that the employee agrees to these conditions in writing.

It can also be good for morale, as it shows you are open, and confident that your managers will handle hearings properly.

Generally, it’s a good idea to make sure managers dealing with disciplinary and other formal proceedings are properly trained anyway – for example, to teach them to assume that everything they say might be recorded and could be used against them, even if they think they can’t be overheard.

Whether you allow recordings or not, you may want to take legal advice to check you’ve covered all the angles.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*

Contact us for more information

Letting employees record disciplinary conversations may be better than banning them

25/04/2019


Letting employees record disciplinary conversations may be better than banning them

It’s very easy for an employee to record things on their mobiles at work – for example, disciplinary conversations or hearings – without you knowing. And even if your staff handbook or policies say recordings are not allowed, a court will sometimes admit a recording as evidence if it’s relevant (for example, if it shows that the procedure you followed was unfair, or contains evidence of discrimination), it was disclosed to you in good time, it doesn’t breach your human rights and the person who made it was part of the conversation that was recorded.

Where the recording goes beyond the conversation or hearing itself, and includes private deliberations by, say, a manager or panel, it will usually only be allowed as evidence if no reason was given for the decision and the recording shows it might have been motivated by discriminatory considerations.

You can try and protect yourself as much as possible by pointing out at the start of a disciplinary conversation or hearing that recording it is misconduct and could lead to sanctions, including dismissal – and making a written note that you have done so. You can also provide a comprehensive note of proceedings afterwards, and if the employee does not take issue with your note at the time, it’ll be harder for them to argue their recordings should be admitted in evidence later.

But, faced with the risks that can arise if an employee makes secret recordings anyway, many employers are taking a different approach.

Instead of banning them, they are amending their handbooks and policies to allow employees to make recordings – but subject to conditions that allow the employer to control the process. For example, the conditions may say the employee must ask permission first (which you can refuse), that it’s you who decides when recording stops and starts, and that the employee must transfer the copyright in the recordings to you so that they can’t rush off to post it on social media websites in an attempt to embarrass or damage your business. It’s important that the employee agrees to these conditions in writing.

It can also be good for morale, as it shows you are open, and confident that your managers will handle hearings properly.

Generally, it’s a good idea to make sure managers dealing with disciplinary and other formal proceedings are properly trained anyway – for example, to teach them to assume that everything they say might be recorded and could be used against them, even if they think they can’t be overheard.

Whether you allow recordings or not, you may want to take legal advice to check you’ve covered all the angles.

*In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.*

Contact us for more information


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