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A record of disciplinary hearings

26/01/2017

The use of covert recordings hit the headlines recently amid claims that attempts had been made to bug MPs who had visited retail giant Sports Direct to check on their working practices following controversy over its treatment of its staff.

It was a claim strongly refuted by the firm’s board of directors. But, in the world of employment law, the story raises issues about whether there’s ever a case for recording interactions with employees such as disciplinary hearings.

Employment lawyer Julia Fitzsimmons debates the pitfalls:

Employees don’t have a right to record hearings such as disciplinaries and employment tribunals seem to rule on the admissibility of any recording made covertly on a case-by-case basis.

On first glance it may make sense to have a word for word record of a hearing but many employers aren’t keen on this, preferring to take a discreet note so it doesn’t inhibit a full and frank discussion of the matters in hand.

What should be an informal, internal meeting could feel like a police interview under caution thanks to an official recording. Transcribing any recording to have an accurate representation of what went on is also going to be costly and time consuming.

But if you refuse an employee’s request to record events, this can be counter productive and lead to other problems - they are likely to record covertly then in any case. A refusal could be seen as a means for an employer to deny facts later on and you could appear duplicitous - if you have nothing to hide, why not agree to it being recorded?

If you do agree, inform the employee that it is on the condition that they provide you with a file copy immediately and provide any transcript at their expense. Employers should also request they assign the rights to the recording to you before the meeting and agree not to share or post on any media platforms without your express written consent.

In the meantime, you, the employer, can take written notes and circulate (in the old fashioned way!) at the end of the meeting.

* Based in our Telford office, Julia works with a range of agricultural, manufacturing and SME clients across Shropshire. She has acted for national and international businesses and Government departments and specialises in managing employee issues around business restructures. For further advice on employment law or HR issues, please contact Julia on J.Fitzsimmons@fbcmb.co.uk.

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