Recording Disciplinary and Dismissal Meetings

The covert recording of conversations in disciplinary and grievance meetings is an issue that is close to my heart as it is something that happened to me many years ago. A grievance investigation that I was conducting was covertly recorded, which thankfully I realised half-way through. It was not a particular problem as nothing was being said or done that could have got me or my client into trouble, but it shocked me at the time and left me very wary.

Bearing in mind some of the conversations we have had in adjournments with dismissing managers, that wariness has come in very useful, making sure that we always have the adjournment conversations out of the room in which the dismissal or displinary meeting is being held.

In the past we always understood that Tribunals were not interested in listening to covert recordings, especially those that record the private conversation of the managers in the adjournment. That has changed though and it is the adjournment conversations that have got some companies into serious trouble.

In Fleming v East of England Ambulance Service NHS Trust 2017, Fleming was subject to disciplinary proceedings and without informing the manager he recorded the entire disciplinary hearing on his mobile telephone. During the various comfort breaks Fleming left his mobile phone in the room which covertly recorded the disiplinary panel's private discussions. On the basis of what he had heard in the covert recordings, Fleming refused to co-operate with the process. As a result he was dismissed. Fleming then claimed unfair dismissal and disability discrimination. The covert recordings were brought to the attention of the Tribunal and it was asked to consider them as evidence in support of Fleming's claims. The case went to the EAT and it decided that the adjournment conversations were central to Fleming's decision to disengage with his employer and they were allowed as part of the evidence against the employer. This ruling means therefore that Tribunals could be allowed to listen to any type of covert recording made by an employee.

So how should you proceed with regard to recordings?

The first and most important thing is to make sure that any adjournments or private conversations are held in a room that is different from the one in which the disciplinary or dismissal meeting is taking place. Allow the employee to remain in that room and all managers involved should take themselves off to a different room. You will then return to the meeting room when you are ready to continue the meeting with the employee.

The second recommendation is to ask at the beginning of the meeting if the employee is recording, or intending to record, the disciplinary or dismissal meeting. If they are, then allow it to be done openly and make sure that you are given a copy of the recording at the end of the meeting.

We are often asked by managers whether they should record meetings of this nature and our response is always that it is not necessary. If you have a good note-taker then the notes of the meeting should suffice. There are however situations where open recording of the meeting is useful, such as if the case is particularly complex or if you feel that the employee is likely to take any decision all the way to tribunal. It can also be helpful when the dispute is around bullying or harassment and there is a lot to consider. We would not normally recommend recording, but from my own experience I know it can be helpful in showing that the meeting was conducted properly and reasonably. In my case there was a lot of laughter between all the parties involved, which was captured by the recording. It showed that the meeting was conducted in a comfortable and supportive environment and went a long way to supporting the dismissal of the grievance.

It is also worth noting that if you are proposing to record the meeting you do need consent from the employee beforehand. It is likely to be a breach of Data Protection Regulations if you continue without consent.

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