Weekly dilemma: Recording a disciplinary hearing

Michael Berriman, partner, Weightmans, looks at employees' rights regarding disciplinary hearings.

I am arranging a disciplinary hearing and the employee has requested to record it. What are her rights?

First of all, if your employee has a disability some form of recording arrangement may amount to a reasonable adjustment, which you are under a duty to make. Otherwise, there is no specific provision that either permits or prohibits an employee from making an audio recording of your meeting. The only statutory rights that exist in relation to the conduct of disciplinary meetings relate to the right to be accompanied.

The chances of resolving the issue with your employee are improved if the request is made some days ahead of the meeting. This presents the opportunity to explain clearly in advance that: 

• the proper conduct of this disciplinary hearing is your responsibility;
• you do not allow internal disciplinary hearings to be recorded by anyone;
• written notes are to be made of the matters discussed;
• the notes are not meant to be verbatim but great care goes into ensuring that they are as complete and as accurate as possible;
• the employee and her representative may make their own notes and copies of each side's notes can be exchanged.

Most staff will be sufficiently reassured by this and will agree to abide by it. However, some may agree but will still conceal and use a recording device. It would be unwise to insist on searching an employee, but you can ask them to confirm that they have no device capable of recording the hearing with them or, if they do, to produce it and show that it is turned off. The same applies if the request comes as a complete surprise at the beginning of the hearing. Although more challenging perhaps, calmly put your position to the employee and suggest she discusses it with her representative. As a last resort, warn the employee that a refusal to comply with your reasonable instruction will render her liable to separate disciplinary action.

If the employee digs their heels in, I still think it is better to carry on with the hearing. You may, however, have to make specific arrangements for your witnesses - for example, only permitting them to be questioned by the employee if the recording device is turned off.