Q&A: Can a manager covertly record an employee’s disciplinary meeting?

Question

One of our line managers has a difficult relationship with one of his direct reports. They don’t get on, and the employee has alleged on a number of occasions that his manager has behaved aggressively towards him and has threatened him with dismissal (which the manager strongly denies). The employee is facing conduct proceedings (for failure to follow safety procedures). His disciplinary hearing is coming up soon and his line manager has been tasked with dealing with it.

The manager is concerned that the employee will make further allegations during or about the disciplinary hearing — and has asked a HR advisor if he can make a covert audio recording of the meeting. Should we allow this?

Answer

This is an unusual situation. We are often asked to advise where employees have covertly recorded an interaction with managers, but it’s less common for a manager to seek to record an employee without their permission.

The simple answer is no. It is not advisable to allow your manager to do this.

Legally, a manager who wishes to record a meeting with an employee must seek the employee’s consent to the recording before the meeting begins. If the employee does not consent, a recording should not be made.

A recording made without the employee’s consent may amount to a breach of his or her right to privacy under human rights legislation. Interference with this right of privacy can be justified if is an appropriate and necessary means of achieving a legitimate aim. It is highly unlikely that making a covert recording in these circumstances would meet this requirement, as the alternative of keeping a written note of the meeting is always available and will achieve the same purpose.

Additionally, any recording made is likely to constitute personal data for the purposes of the General Data Protection Regulation (GDPR). An employer can only process personal data if one of the legal bases set out in the GDPR applies. It is unlikely that any of the legal bases other than consent will apply (as a written note of the meeting can always be made as an alternative). The GDPR also requires employers to inform employees when information about them is being collected. Therefore, if the employee does not consent, the making of the recording and its further use is likely to be unlawful. Making a covert recording of an employee also has the potential to raise significant Industrial/Employee Relations issues.

If the employee gives their consent, then a recording can legally be made. However, we would not advise going down this road. In any event, under GDPR, an employer can only rely on an employee’s consent to process data if it is genuinely freely given and there are no adverse consequences should the employee refuse to consent. This may be difficult to demonstrate where the employee is ‘put on the spot’ and may feel under pressure to agree (for example in a disciplinary meeting).

There are of course other common sense steps you could take to protect this manager’s position. If he is genuinely worried about repercussions, might it be possible to pass the matter ‘out of line’ for a manager of an equivalent grade to deal with?

It is of course also advisable to keep a detailed written record of the meeting for the employee to agree. Asking a member of HR to attend as an independent note-taker should ensure that the record is as comprehensive as possible and will mean that a third party is present at the meeting if any serious allegations are later raised.

Refresh your knowledge of data protection rules with our Employer's guide to GDPR and get in touch if you need any further information.