Kate Brooks

Partner, Solicitor & Head of Employment/HR Services

DATE PUBLISHED: 09 Mar 2016 LAST UPDATED: 09 Jun 2021

Should you record meetings with your employer without their consent?

The reason that this question is usually important to employees for two reasons:

  1. Can the employer fairly dismiss an employee for recording a meeting without consent; and
  2. Would the recording of the meeting be admissible in the tribunal?

Can the employer fairly dismiss an employee for recording a meeting?

In order to dismiss an employee fairly and avoid an unfair dismissal claim an employer must have a fair reason for dismissal for example misconduct. In addition the dismissal must be fair in all of the circumstances of the case. This usually involves following a fair procedure. In this type of situation the employer must follow a disciplinary procedure.

In this situation my opinion is that a dismissal for covert recording would be unfair unless the employer had a very clear policy stating that covert recordings constitute gross misconduct and may be punishable with dismissal.

Would the recording of the meeting be admissible in the tribunal?

Generally speaking the recording would be admissible in an employment tribunal even though the recording was made without the employer’s consent.

Tribunal Judges have a wide discretion to determine whether evidence is admissible and the result is that evidence will generally be admissible if it is relevant to an issue between the parties. It could be excluded by the judge if it:

  1. Has been disclosed late in the tribunal proceedings;
  2. Would be in breach of the Human Rights Act 1998;
  3. Should be excluded as a matter of public policy.

An exception to this may be if the recording captured the employer’s private deliberations about the matters in question.

In order to protect themselves employers should have a clear disciplinary procedure and it is advisable to deal with the issue of audio recordings at the start of the meeting and set out the policy to the employee.

It is important to have clearly worded policies in a staff handbook in order to avoid these types of issues. If you have any queries please contact me at kate.brooks@ellisjones.co.uk.

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