Imagine a performance review that could make or break a person’s career. Imagine a disciplinary hearing with the potential to get very hairy. Imagine a return to work interview where the person in question has been off sick for three months straight.
There are lots of reasons why employees might be nervous about certain meetings with HR. And sometimes, you’ll find that employees actually want to record the conversation.
But why would employees want to do this? And from a legal perspective, can employees record conversations with HR?
Why employees might want to record a conversation with HR
Employees might want to record conversations for different reasons. And a lot of this could depend on the context of the meeting. For example:
- Legal evidence: If they felt like they were going to be unfairly dismissed for example, they might want to record the conversation to use as evidence in a tribunal further down the line.
- Internal leverage: Perhaps they believe that a conversation – such as a performance review – could support a case they might be planning for something like a pay rise.
- Memory aid: It could be as simple as just wanting to remember the conversation, so that they can brush up on the important points – for example, if the conversation was to set new career goals, the employee might want to remember these word for word.
But while some might argue that if you have nothing to hide then you have nothing to fear, there are others who feel nervous at the idea of an employee recording what they may consider to be a very private conversation. So legally speaking, can employees record conversations with HR?
It isn’t technically against the law
I spoke to legal specialist Kathryn Fielder, Senior Associate with B P Collins, who told me that there is no specific legislation guiding whether employees are allowed to record conversations with HR.
“There is no hard and fast rule” she explains, “however, generally, if an employee is going to record a conversation, they should do so openly and notify their employer of the intention to do so.”
But does this mean that covert recordings become useless in a court of law? Not necessarily – but that doesn’t give you a free pass, either!
What happens when an employee secretly records the conversation
It used to be widely assumed that if an employee made a covert recording, then this would not be admissible as evidence in a court. But as Kathryn Fielder explained to me, this all changed in 2006 with the decision in Chairman and Governors of Amwell View School v Dogherty UKEAT/0243/06.
“The recording was admissible for the part which the employee was present” says Kathryn, “but any parts where the employee was not present were not admissible. It was acknowledged by the tribunal, however, that if the claim had involved discrimination, their decision may have been different and they may have found the entire recording to be admissible”.
Of course, just because a secret recording might be legally admissible does not mean it is always legal to secretly record conversations. And this partly depends on the nature of the conversation, and what you intend to do with the information.
According to Redstart UK, if you record a conversation with HR without prior consent, then there “may be issues around breach of data protection”.
Can HR prevent employees from recording conversations?
Kathryn Fielder suggests that as a starting point for HR, if you do not want employees to record conversations, then you need to make it very clear in your policies that the recording of meetings is expressly prohibited, or only allowed with the consent of all parties.
However, she is quick to remind us that in the event of a covert recording, an employment tribunal may still consider the evidence admissible, if they believe it to be relevant.
“Therefore”, Kathryn advises, “HR staff should operate on the assumption that they could be recorded in meetings, and that any recording might be allowed as evidence by a tribunal”.
Create a credible audit trail of all conversations you have with employees
With a culture of trust and reliability, it is unlikely employees will feel the need to to record conversations with HR. So if you want your employees to trust that their conversations with HR will be fair, trustworthy, and that promises will be remembered, then there is plenty you can do to create this culture. For example:
- Ensure an independent witness is present. This is particularly important in conversations where people may be throwing a lot of blame, or where an employee’s behaviour is being called into question. An independent witness who has no stake in either party’s story, helps lend credibility to proceedings.
- Create a record of all conversations. If you create an audit trail containing details of all conversations you have with employees, then you’ll be able to recall details of conversations easily, without anybody feeling like they need to take this responsibility upon themselves.
- Follow up on all types of conversation. Any conversation where a conclusion is reached, goals are set, or outcomes are decided, then make sure you follow up with the employee(s) in question. This shows them that the things you spoke about were important, and confirms that you are keeping an accurate reflection of the conversation. It’s also a great way to find out how they’re getting along with whatever was discussed.
It’s a little bit old school to physically write down conversation summaries on paper, and store them in a filing cabinet. But if that’s how you’re still doing it, you should think about keeping confidential conversation records stored securely in a safe, digital environment. HR software such as People HR helps you create custom information screens that take up zero space in your office, are safely encrypted, and can be fully audited in future.