Recording conversations at work

Now that 99% of people have a smartphone in their pocket, it’s a real worry for employers that they’ll find themselves being secretly recorded by an employee. This can throw up all sorts of problems, from creating mistrust between colleagues to leaving you on the wrong end of a tribunal claim.

Recording conversations at work is a very murky area in terms of legalities, as there’s been a lot of conflicting case law on the subject. Our advice is to lay out your stance on recordings within your employee handbook and to remain open and honest with your staff to ensure you’re never caught in a sticky situation.

Is it illegal to record a conversation at work?

The short answer is no, it’s not technically against the law to record a conversation at work. However, for employees who do so, it may constitute misconduct and could lead to a disciplinary procedure, and even dismissal.

If an employee decides to use the recording they’ve made as evidence in a tribunal case, the general rule established by past cases is that the recording will be admissible if the employee was present while it happened. So, if the employee left a secret recording device behind after they left the room, then the recording will probably not be allowed as evidence.

However, it’s important to remember that this isn’t a hard and fast rule, and new cases could bring different results.

In the case of employers secretly recording their employees at work, tribunals are likely to take a very dim view of those actions, so never be tempted to do so. If you suspect an employee of misconduct or are wanting to dismiss them, you should carry out a fair investigation and formal disciplinary procedure first.

What should you do if an employee records a conversation at work?

There are a few reasons why an employee may want to record a conversation, including:

• To remember what was said for a later date
• For legal evidence
• For improper reasons, e.g. to use as blackmail.

The employee should ask for your permission before recording, and you can choose whether to allow them to.

If you choose not to let your employees record a meeting or conversation, make this clear to them beforehand and ask them to confirm that they’ll not be doing so.

It’s best practice to outline your stance on recording meetings within your employee handbook so that it’s clear what will be considered misconduct. Many employers choose to include a line in their Disciplinary Policy, stating that the consent of all parties must be given before making a recording.

Typically, if an individual makes a recording in secret without asking, or after you’ve denied them permission, this will be seen as misconduct, and could even amount to gross misconduct justifying dismissal.

However, it’s particularly important to seek professional advice on whether or not their behaviour amounts to gross misconduct and before making any snap decisions to dismiss them, especially with the law around recording conversations in the workplace being unclear.

As a general rule, you should go into each meeting prepared for the possibility that an employee may secretly be recording it, and that the recording could still be permitted as evidence in a tribunal, even if you’ve asked the employee not to record the conversation.

The best thing you can do to prevent employees making secret recordings is to promote an open, honest and supportive culture within your business. Simple things like letting staff know they can have an elected witness present in certain meetings and following up with them afterwards can help employees feel more secure and reduce their feeling that they need to protect themselves.

What about if you want to record meetings?

As an employer, you may want to record a conversation or meeting with employees in the following circumstances:

• Disciplinary proceedings
• Appraisals
• Return to work interviews
• Board or management meetings.

Recording a meeting will let you focus on the conversation that’s happening without having to take notes, while also creating a record in case of disputes further down the line.

However, if you plan to record a conversation, you must always get the consent of the other people involved first. To comply with the GDPR, it’s also a good idea to inform them of the purpose of the recording, and to get them to sign a form acknowledging that they’ve given permission for the recording to take place.

All employees should give their consent freely and not be pressured into doing so, and not receive any negative treatment for refusing to be recorded. Each recording should be treated separately, so if an individual has given their consent for one recording, it shouldn’t be assumed that it counts for all recordings.

The content of this blog is for general information only. Please don’t rely on it as legal or other professional advice as that is not what we intend. You can find more detail on this in our Terms of Website Use. If you require professional advice, please get in touch.