Secretly recording workplace meetings

This is a question that comes up very frequently, and the answer has some important nuances.

Legal position on covert recordings in England and Wales:

There is no general criminal law prohibition against secretly recording a conversation to which you are a party. You are not committing a criminal offence by pressing record on your phone during a meeting with your employer, provided you are present in the meeting yourself. The position would be different if you planted a device to record a conversation between other people at which you were not present, which could engage the Regulation of Investigatory Powers Act 2000 or other legislation.

Admissibility in legal proceedings:

A covert recording can be admitted as evidence in Employment Tribunal proceedings. The tribunal has a broad discretion to admit relevant evidence, and there is no automatic rule excluding secretly recorded material. In the well-known case of Punjab National Bank v Gosain (EAT, 2014), the Employment Appeal Tribunal confirmed that covert recordings are not automatically inadmissible.

However, the way the recording was made and the circumstances will be scrutinised. In Singh v Meana Masala Ltd, and more recently in cases such as Phoenix House Ltd v Stockman (2017), the EAT considered covert recordings and gave guidance on how tribunals should approach them.

Key practical points to be aware of:

1. A tribunal may admit the recording but may also draw adverse inferences about your conduct. If a judge considers you were acting in bad faith, trying to entrap someone, or being manipulative, it can damage your credibility even if the content of the recording supports your case.

2. If the recording captures something said in a genuinely privileged context, such as a private conversation between your employer and their solicitor that you were not supposed to hear, the tribunal may exclude that part or take a dim view of you relying on it.

3. Your employer may treat the act of secretly recording as a disciplinary matter. Many employers have policies that prohibit covert recording in the workplace, and breach of such a policy could, depending on the circumstances, be relied on as a reason for disciplinary action or even dismissal. Whether such a dismissal would be fair is a separate question, but the risk exists.

4. If you are considering making a subject access request for personal data, be aware that your employer may also be entitled to see any recordings you have made of meetings if they contain their personal data, though in practice this rarely arises.

5. Recordings are most valuable when they capture something that would otherwise be denied, such as discriminatory remarks, threats, or admissions. A recording of a routine meeting where nothing controversial is said adds little.

Data protection:

The UK GDPR and Data Protection Act 2018 apply to the processing of personal data. If you record a meeting, you are processing personal data of the other participants. However, for purely personal or domestic purposes, the so-called household exemption may apply. If the recording is made for the purpose of prospective legal proceedings, this is generally treated as a legitimate purpose, though you should be careful about how the recording is stored, shared, and used.

Practical guidance:

If you are in a situation where you feel you need to record meetings, it usually signals that the employment relationship has already deteriorated significantly. Consider the following in order:

1. Think carefully about what you are trying to achieve. If you want evidence of something specific being said, a recording can be powerful. If you are simply anxious and want a safety net, weigh the risk of it being discovered and used against you.

2. Check your contract of employment and any workplace policies for any express prohibition on recording.

3. If you do record, keep the recording secure and unedited. Do not share it on social media or with colleagues. An unedited recording carries far more weight than one that has been cut.

4. Consider whether asking openly to record the meeting might be a better approach. If you are attending a disciplinary hearing or grievance meeting, asking to record it is not unusual and puts you in a stronger position if the employer refuses. The refusal itself can be telling.

5. If you are already contemplating tribunal proceedings, discuss the recording with a legal adviser before disclosing or relying on it, so it can be deployed to best effect.

In summary, you can do it, it is not a crime, and it may well be admissible, but it comes with risks that you should weigh carefully depending on your particular circumstances.