Is an employer able to tape record a meeting with an employee to ensure that it has an accurate record of the meeting?

An employer that wishes to tape record a meeting with an employee must seek the employee's consent to the recording before the meeting begins, and must respect the employee's rights if he or she refuses to give his or her consent. A recording of an individual at work made without that employee's knowledge and consent may constitute a breach of his or her right to privacy under art.8 of the Human Rights Act 1998. Although the right to respect for privacy is a qualified right, rather than an absolute one, it is unlikely that tape recording a meeting without the employee's consent could be justified as an appropriate and necessary means of achieving a legitimate aim. Taking a written minute of the meeting would achieve the same end. If, however, the employee gives his or her free consent, the recording may go ahead.

Any recording made will constitute personal information for the purposes of the Data Protection Act 1998. The making of a recording without the individual's knowledge or consent would breach at least two of the data protection principles, namely the duty to process data fairly and lawfully, and the duty to process data in accordance with the rights of individuals. It is important to note that "process" for this purpose is widely defined and includes the gathering of data in the first place.

The first of the two principles mentioned above stands to be interpreted in such a way as to give effect to art.8 of the Human Rights Act 1998. "Fair" processing, according to the Data Protection Act 1998, requires employee consent unless one of a narrow list of other conditions is met. Given that there will always be the alternative of making a written minute of the meeting, it is unlikely that any of the other conditions would be satisfied.

In relation to the second data protection principle mentioned above, the rights of individuals under the Act include the right to be informed whenever data is held about them, the purpose for which the data is held, and the right to request and be granted access to that data. Thus, any recording made without the employee's knowledge would create a breach of the Data Protection Act 1998.