Therefore it is now common for employees to use their smartphones to record the meeting, to support them as they are not able to note take as they are answering questions or, because there is a lack of trust and also so that they have their own record of the meeting. However, starting disciplinary action because you have made a secret recording could amount to victimisation under the Equality Act 2010 if the recording was made to provide evidence of discrimination at work.. the purpose of the recording), which the ET had done, was the correct approach, Employees who record meetings covertly also need to consider the GDPR if sensitive information about other people was discussed at the meeting. If you need any assistance with any aspect of handling a disciplinary hearing, don’t hesitate to call us on 01527 909436. Even though the claimant was allowed to present the recording to the tribunal but it did her case no favours. Recording video meetings. I thought it was a great idea but all my union colleagues were aghast. Preparation (substance and process) The meeting will run more successfully if you ensure you are well prepared and have the necessary details to conduct the meeting. It is likely that a transcript of the recording could be used. In practice, recording meetings may make those taking part uncomfortable and so may not be helpful to the conduct of the meeting. It is recommended to be honest if you are asked if you are recording. Start the new year with a great offer: 50% off your first three months when you take up a new limited company package with Crunch! Employers who wish to record hearings need to consider: If an employee has a physical or mental impairment that makes taking their own notes difficult or impossible then allowing them to take an audio recording of the meeting may be an option, if there is no other reasonable alternative. Seamus McGranaghan from O'Reilly Stewart solicitors answers a query where an employee left their mobile phone on voice record and was recording conversations taking place in the office when he left the room. Your employer should have carried out a thorough, fact-finding investigation first where you have had the opportunity to put your case forward. An employer that wishes to record a meeting with an employee must seek the employee's consent to the recording before the meeting begins, and must respect the employee's rights if … It is always better to have a recording and not use it, than to have nothing that you could possibly rely on. You may have received a letter from your employer asking you to go to a disciplinary meeting. Taking a written minute of the meeting would achieve the same end. Secondly, it may be an idea to include in all employees Contract of Employment that making covert recordings of grievance or disciplinary meetings are forbidden. the employee’s disciplinary record, general work record, work experience, position and length of service getting a medical opinion on whether the employee is fit to attend the meeting (with the employee’s permission) If the employer reaches a decision, they should tell the employee in writing and tell them of their right of appeal. Use our Take-Home Pay Calculator to work out your true earnings and see if you could save money with a different company set up. Can employers record conversations at work when the employee doesn’t consent? In English law the general rule is that covert recordings would be allowed as evidence in the Employment Tribunal, as long as the material from the recording is relevant to the issues raised in your ET1. Whilst this is a step toward prohibiting an employee, it still will not necessarily mean that the covert recording is inadmissible. Crunch is a trading style of E-Crunch Ltd, a limited company registered in England under company number 06014477. If an employer records a meeting with the employee’s consent, the information should be treated as ‘. It should be expected that the tribunal will criticise you for making a covert recording as they do not welcome this practice. Where an employee makes a request to make a recording of a disciplinary or grievance hearing, the employer is generally not obliged to agree to it. Performance review meetings. They said this meant they would have dismissed her for gross misconduct if they had known about her recording. Step 7: Record keeping. If an employee covertly records a meeting, an employment tribunal may allow this to be used as evidence in certain situations and circumstances (although generally will not allow the private deliberations of the disciplinary panel, when they are attempting to reach a decision on the hearing). The disciplinary hearing should be held at a reasonable time and place, in a private meeting room during the employee’s normal working hours. The chairperson should also make it clear that recording the meeting in breach of the policy would be grounds for disciplinary action. It is common that employees are keen to produce recordings where employers say something which is unhelpful to their case. Can employees record disciplinary and grievance meetings? Exceptions are made for recordings of private conversations which might not be admissible for public policy reasons. Tribunals will though take a dim view of anyone who lies to their employer about making a recording, without a good reason for doing so. Grievance proceedings. It’s unlikely that many employers would agree to this (as it’s unlikely that most employers disciplinary procedures or grievance procedures would expressly allow this). Both versions of the notes can be referred to at any later date, including at tribunal. If the employer doesn’t agree that the employee’s version is accurate, it should keep both versions on record. Section 10 of the Employment Relations Act 1999 (Section 10) gives workers the right to be accompanied by a fellow worker or union official to all meetings that may result in a disciplinary sanction. This site uses cookies. If an employee is found to have secretly recorded a work meeting or conversation this is generally going to amount to misconduct, entitling the employer to take disciplinary action. With many staff working from home it might be tempting for the employer or employee to record their video meetings. In addition, most employers now start a disciplinary hearing informing the employee that they must not record the meeting. Always take advice. Managing a formal meeting with an employee, such as a disciplinary hearing, can be challenging at the best of times. If there's agreement to digitally record a meeting, this must be done in line with data protection law. Disciplinary procedures are a set way for an employer to deal with disciplinary issues. In theory this shouldn’t pose a problem, since you will have acted above board in and around the meeting, however it can leave the employer with egg on your face if the recording shows that its notes contained significant mistakes or omissions. After the meeting, your employer should tell you what they have decided - they should do this in writing. What help is available for small businesses, gig workers, and the self-employed affected by coronavirus (COVID-19)? Managing a formal meeting with an employee, such as a disciplinary hearing, can be challenging at the best of times. These pages tell you how to prepare for such a meeting and who can come with you. Your employer shouldn’t take any disciplinary action before the meeting. Record the time the meeting closes. With the increased amount of technological options for easy audio recording, employers are often being asked if an employee can record meetings or hearings. By continuing to browse the site you are agreeing to our use of cookies. Working Time Regulations – working hours, rest breaks and holiday entitlements guide, Short-time working and lay-offs (information for employees), Time off for dependants – family emergencies and Parental Bereavement Leave. All the support and advice you need, wherever you need it. This means that if an employee continued to record the meeting they would be in breach of the term in their contract, and the employer could present the argument that a subsequent dismissal was in breach of contract. Recording meetings can make all of those taking part feel uncomfortable, and may affect the way the meeting runs – it is much more preferable to have a neutral person present to take notes, which are shared with all participants afterwards. The original ET disagreed and said her recording was not a breach of the implied term of trust and confidence (that exists in all employment contracts). Watch on Ideally, yes, you should request permission to audio record a disciplinary – especially if you as the employer would like to record the meeting. In a recent case, this tactic can backfire (Chairman & Governors of Amwell View School v Dogherty reaffirmed in Vaughan v London Borough of Lewisham), the claimant who made a covert recording at her disciplinary meeting lost her case. If the employee doesn’t agree that the notes are accurate, the employer should ask him/her to give a corrected version. Management meetings. From understanding expenses to starting a limited company, we've a range of jargon-free business guides for you to download and keep. We assist and act for numerous employees and employers in relation to dealing with grievance and disciplinary matters. This forces the employee to either come clean or possibly allow them to lie which will support the employer later on as it will affect the claimant’s credibility as a witness. Our registered office is: Telecom House, 125-135 Preston Road, Brighton BN1 6AF. Employers should keep a written record of any disciplinary or grievance cases they deal with. However, starting disciplinary action because you have made a secret recording could amount to victimisation under the Equality Act 2010 if the recording was made to provide evidence of discrimination at work. It’s unlikely that many employers would agree to this (as it’s unlikely that most employers disciplinary procedures or grievance procedures would expressly allow this). The rules vary between businesses and individuals. They can choose to be accompanied by either a fellow worker or trade union representative. The employer argued their case that it was illegal to record the disciplinary meeting without their knowledge and the decision was given in the favour of the employer. Keys to interviewing right 1. If there's agreement to digitally record a meeting, this must be done in line with data protection law. You must keep the recording securely and give access to it to only those who need to know about it. The age of technology has brought with it a new type of nightmare for employers. Free business mileage spreadsheet. However it was taken further to EAT who overturned the previous decision that the recording of disciplinary meetings without the employers knowledge was not illegal. Acas provides comprehensive guidance on employment issues which you can In almost all cases, the employee who recorded the meeting or hearing must have been present. Usually, an employee will ask to have another person present or tape record a conversation only if he or she has a concern that discipline may be imminent. The employer raised the point that the claimants conduct by making the covert recording proved the way that the claimant destroyed confidence and trust between itself and her. It is common that employers when conducting disciplinary hearings will have an individual present to note take, but it is common for queries to arise as to how accurate the notes are. My position was simple - management create the written record and will include anything the employee said, even if it was detrimental to the employee's case. Any recording made will constitute personal information for the purposes of the General Data Protection Regulation (2016/679 EU) (GDPR). Create, send and store sole trader invoices in a snap with our free invoice software. If an employer discovers you have secretly recorded a meeting this could result in disciplinary action being taken against you. One of the employers where I was a union rep uggested recording all disciplinary meetings. If a covert recording may breach the employees’ right to private and family life under article eight of the European Convention on Human Rights. Certain factors will determine whether it becomes evidence, such as: Email: info@thelawclinic.co.uk Telephone: 0203 659 6162, http://thelawclinic.co.uk/wp-content/uploads/2018/12/IMG_0753.jpg, http://thelawclinic.co.uk/wp-content/uploads/2017/03/Final-Logo-small.png. Can employees record disciplinary discussions? What is a payment on account and do I have to pay it? However, these conversations may be admissible if they are evidence of discrimination. However, sometimes, as in this case, the employer may not find out until … Type up them as soon as possible but keep the hand written notes on file. Join 11,000 clients who trust our advice, support, and leading accountancy software for their business. Find out more about data protection from the Information Commissioner's Office (ICO). However, often employees will secretly record meetings. But how about if you suspect every word is being secretly recorded? Generally, Employment Tribunals are more lenient with regards to admissibility of evidence so long as relevance can be demonstrated. It should be made clear that firstly employers should ask before any grievance or disciplinary meeting if the employee concerned is recording the meeting. What can you do if one of your employees tape records a meeting or disciplinary without asking or telling you first? The Employment Appeal Tribunal agreed and said to ask why the employee had recorded the meeting (i.e. It is unlikely that many employers would agree to this (as it is unlikely that most Employers disciplinary procedures or grievance procedures would expressly allow this). Seamus discusses a disciplinary hearing for a … If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to us at The HR Kiosk  – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need. Business mileage rates – who can claim and how much does HMRC allow? Is it illegal to record a conversation in the UK? Some instances where you might want to record a conversation (overtly, remember) include: Disciplinary proceedings. You can also find out what you can do if things don't go your way. If the employer agrees that the employee’s version is accurate, the amendments can be agreed as the record. Our advice is therefore for employers to always be alert to the chance that an employee may be using a mobile phone or similar device to record a meeting and, most importantly, to follow a fair and proper procedure whenever work issues arise – whether you are dealing with a grievance or disciplinary matter. As such and in addition to the person conducting the disciplinary hearing, it is advisable to have a second person present from the employer's point of view, who can take notes. Secondly, it would be sensible to include a clause in all Contracts of Employment to say that covert recording of disciplinary or grievance meetings is forbidden. If, however, the employee gives their free consent, the recording may go ahead. This disciplinary meeting (normally called a ‘hearing’) should be at a reasonable time and place. Content is for general information only. News. These pages tell you how to prepare for such a meeting and who can come with you. Obviously, the employee has the right to be accompanied at a disciplinary or grievance hearing by a work colleague or trade union representative – and either the employee or person accompanying them can take notes also. employers can use when conducting a disciplinary or interview meeting. However neither an employee, nor an employer, has the right to record a meeting – unless both parties agree to the recording. Sign the notes and if you wish ask the employee and their companion to sign the notes too. Disciplinary or grievance meetings held by video may be digitally recorded with the agreement of everyone involved. If you have been invited to a disciplinary hearing or meeting, it is likely that your employer is concerned about your conduct, capability, sickness record or any other reason affecting your work. Employers who are concerned about covert recording should ask their staff at the start of a meeting whether they intend to make a recording. Disciplinary or grievance meetings held by video may be digitally recorded with the agreement of everyone involved. A question we get asked is employees allowed to record grievance and disciplinary meetings? The claimant had also tarnished her credibility due to the face that the claimant had been asked if she was recording and she denied this. What maternity pay is a pregnant woman entitled to. The case law in this area has generally found that where employees covertly record a disciplinary hearing or meeting this evidence can be used in the employment tribunal proceedings. It is a step by step process through with helpful tips and a column for notes. To break a potential misconception, the fact that the evidence was gathered secretly doesn’t mean that it won’t be allowed. Your employer should give you the opportunity to set out your case at the meeting. Please also note that there are differences in legislation in Northern Ireland. An employer should provide a copy of the minutes/notes taken at the meeting to the employee. Read our full disclaimer. Can employees record disciplinary meetings, and would a recording be admissible in a tribunal? The most notable exception is Punjab National Bank v Gosain. Board meetings. Stay in the know with the Crunch newsletter, By submitting you agree to our Privacy Policy, Interested in Crunch? An employee does not have the right to record a meeting. Consequences of secret recordings at disciplinary hearings. You may have received a letter from your employer asking you to go to a disciplinary meeting. Many employees who consider they are being treated … Records should be made of all disciplinary proceedings. However, any parts of the recording relating to private discussions or deliberations between the panel are mostly not generally admissible on the grounds of public policy, although there have been … However, generally speaking, it's not a crime to record a … You can also find out what you can do if things don't go your way. The right to be accompanied Case law suggests that employees who covertly record meetings and, in particular, disciplinary hearings, will only be able to admit, as evidence, recordings of the parts of the hearing where they were present. What happens if an employee and employer don’t agree with the written minutes/notes of a disciplinary or grievance hearing? There may be times when it is suitable, but tread very carefully. At the hearing your employer should: explain the complaint against you In theory this shouldn’t pose a problem, since you will have acted above board in and around the meeting, however it can leave the employer with egg on your face if the recording shows that its notes contained significant mistakes or omissions. With this in mind, below are the crucial need-to-knows when carrying out a disciplinary hearing. If an employer discovers you have secretly recorded a meeting this could result in disciplinary action being taken against you. However, if the recording reveals that the employer or their representative makes comments or behaves in a way which could jepordised their case then that consideration may reduce its significance for the employee. If you have been invited to a disciplinary hearing or meeting, it is likely that your employer is concerned about your conduct, capability, sickness record or any other reason affecting your work. It could be the case that employers could be undermined by what they have said in the meeting and the most frequent question asked is whether the employee’s covert recording would be allowed before a Tribunal. Meetings may, however, be recorded with the employer’s consent. Secret recordings of grievance and disciplinary meetings. Even for the most seasoned HR professional, conducting a disciplinary hearing can be a nerve-racking process. The note-takers are important in case the technology to audio-record the meeting fails, leaving no documentation to prove what was or wasn’t said. Kathryn Fielder suggests that as a starting point for HR, if you do not want employees to record conversations, then you need to make it very clear in your policies that the recording of meetings is expressly prohibited, or only allowed with the consent of all parties. Call on 0333 311 0800 or we can call you any time from Monday. 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Trading style of E-Crunch Ltd, a limited company, we 've a range of jargon-free business guides for to! A different company set up can do if things do n't go way. A question we get asked is employees allowed to present the recording to the employee s. Will investigate into how the recording securely and give access to it to those.
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