As everyone and their dog has a mobile phone these days, it’s fairly common for clients to give not just documentary evidence, but also recordings of conversations they’ve had with other parties.  I’ve had experience of police relying on such recordings, and I’ve seen transcripts from recordings be used in court, even though the other party didn’t know they were being recorded.

So is it misconduct if an employee makes a recording at work without telling anyone?

Surprisingly yes, except in very limited circumstances, a court has recently held.  That doesn’t mean you can’t record things, you just need to be up front about it.

Which begs the question, when would it be OK to make a recording in secret?

The court didn’t give an exhaustive list of what may or may not be good justification, as it will depend on the circumstances, but times when it might be acceptable include if there is a genuine reason to believe that what you say might be misrepresented.  Times when it’s much less likely to be acceptable relate to the sensitive and confidential nature of what is being discussed, or if people were expressly told to ensure that all recording equipment was turned off for good reason.

If you are involved in holding or running grievance or disciplinary meetings for clients or for yourself, it might be a good idea to update your staff guidelines or policies and procedures.  Do they cover the recording of meetings and if not, they probably should.  Including a statement that no meetings may be recorded without the express prior agreement of all in attendance would be good practice.  You could also add that where possible there will either be an official recording and/or a note taker will be present.

Kleyman & Co Solicitors.  The full service law firm.  We’re always listening.