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Testing, testing

Part of a manager’s role is to ensure that standards are met and adhered to. We’re always advising managers to keep written notes of discussions, training etc that they hold with employees. As the use of technology at work continues to evolve there are a variety of ways to do so. It’s common to monitor productivity, including the number and quality of phone calls. Buildings contain CCTV, emails and online activity are checked and company vehicles have trackers. These monitoring activities are usually advised to employees with the warning that the company reserves the right to use such information in discipline action.

It works the other way too. We normally remind employers that even if they have specifically refused employees the right to record conversations in discipline or grievance meetings, they often do anyway. Covert recordings have been made, using not just mobile phones to capture the data but USBs, watches and even pens have been adapted. The courts have made it clear that even if you refuse the right to record such recordings can be admissible in legal proceedings. So be careful what you say and how you say it!

The 2013 case of Vaughan v London Borough of Lewisham saw the employee record 39 hours of conversation between herself, her managers and her colleagues using an iPod. She submitted all 39 hours conversation as evidence and the question was whether the employee could use the recordings as evidence. The tribunal judge said that Ms Vaughan could not use this as evidence for a number of reasons including that there was no transcript and that the relevance of the material had not been states other than it was proof of management lying. However when she appealed, the Employment Appeal Tribunal said that while making covert recordings was ‘very distasteful’ it did not mean that the content could not be used as evidence, although it should be produced alongside transcripts to support its relevance. However, it wasn’t the court’s role to sift through 39 hours of recordings trying to determine what was evidence and what was not.

So what does this mean for employers?

Update your policies to make it clear that employees are not permitted to make recordings during meetings/hearings unless they have sought and obtained permission. At the start of any meeting ask everyone present to turn off all mobile phones or other recording devices, stating that the use of it is forbidden. Bear in mind that covert recordings can still be made (so always conduct your meetings in a courteous and appropriate fashion) but if you’ve made your position clear and supplied copies of your notes, you will make a favourable impression with a tribunal if the worst comes to the worst.

Any meeting should be documented in written form. Ask a separate note taker to attend the meeting and allow them to ask those present to repeat what was said or slow down. We always summarise regularly as we go through. This helps the note taker capture they key points and confirms with the employee that his or her points have been correctly understood. At the end of the meeting ask the note taker to read the notes back. All present at the meeting can stop to make any corrections or additions and once complete ask all to sign the notes to say they are happy with what has been documented. The fact that this process has been followed is also noted. It’s usual for a copy of the notes to be given to those present for their records but also kept on file for future reference. Always keep the hand written originals too.

Train managers who will be chairing the meetings or taking notes. Having the skills needed to deal with a situation when it arises will means matters can be dealt with quickly and professionally.

Don’t say anything you wouldn’t be willing to say in court at a later date. Whether an employee is making covert recordings or not, this is good practice and just because you have asked an employee not to, does not mean they won’t record the meeting.

Russell HR Consulting provides expert knowledge in HR solutions, employment law training and HR tools and resources to businesses across the UK.

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