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Ask the expert: Recording disciplinaries

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Esther Smith, partner at law firm Thomas Eggar, and Martin Brewer, partner and employment law specialist at Mills & Reeve, explain whether an employee charged with misconduct can be denied the right to tape record his interview.



The question:
We are conducting an investigation into a misconduct offence. The employee being investigated has requested tape recording the interview for his records. I have rejected the request stating that the interview will be recorded by our management witness, which he will be able to read on the day and have a copy of. I am ok in doing this?

Michael Stocks

The answers:

Esther Smith, partner, Thomas Eggar
This is quite a common area of concern with both disciplinary and grievance hearings. There is no statutory provision obliging the employer to agree to taping a hearing so you are not doing anything wrong in rejecting the employee’s request here. When you refer to the management witness ‘recording’ the meeting, I assume you mean by taking notes during the course of the hearing itself, rather than taking their own tape recording. So long as the notes taken are a fair reflection of the hearing and its content, and a copy is provided to the employee following the hearing, then that is fine.

If the employee is not happy to rely on the management account of the meeting, he could arrange for someone to attend with him, under his statutory rights to be accompanied, and ask them to take full notes of the meeting. Or, he could do this himself, although this is somewhat difficult to do if you are trying to answer questions at the same time. If he does attend on his own and wishes to take his own notes, then I suggest that whoever is conducting the hearing is sensitive to this and allows time between questions and responses for notes to be made.

If the employer does wish to tape record the meeting itself, this is fine, so long as the employee is told of this in advance and it is done openly. The employer would then need to produce a transcript of the meeting and a copy of the tape so that the employee could verify the accuracy of it.

If, following the hearing, the employee is not happy that any notes produced by the employer are accurate, they can of course record a comment to this effect in correspondence with the employer.

Esther can be contacted at: [email protected]

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information please visit Thomas Eggar

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Martin Brewer, partner and employment law specialist, Mills & Reeve
I have never quite understood the reluctance on the part of participants in these sorts of proceedings to have interviews and hearings tape recorded. At least the recording represents a definitive version of what was said and done. The objection appears always to be almost emotional. There is never any objection to a participant writing everything down, to have a verbatim written record, so why the objection to a recording, a ‘verbatim’ sound record? It’s just another way of keeping an accurate record after all.

I do understand that many employer’s resist this because they feel that participants will be less forthcoming if there is a permanent recording of what they say. But, when you think about it that is nonsensical. It simply begs the question what is the difference between the written as opposed to the sound recording. Perhaps people feel that they can deny the accuracy of the written record if they feel the need to. But that’s all the more reason to have an accurate record.

Clearly if the employee is asking for a recording then a degree of trust is missing. The upshot may well be disputed notes. Furthermore, notes can never quite capture the tone in which something was said or the nuances involved in conversation.

In short, you are perfectly at liberty to refuse the request but you should look at the bigger picture and ask two questions: why am I objecting and would recording actually be better in the circumstances.

Martin can be contacted at: [email protected]

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