Can employers record video call disciplinary & other employee meetings?

With many employees still working from home, you may be managing your staff remotely via video conference, including carrying out disciplinaries, grievances, performance and absence meetings, consultations and potentially dismissals.

It might be tempting to hit the record button on your video call system, but is this lawful, or desirable?

Is it lawful for employers to record meetings?

There is a risk that making a video recording of a meeting with an employee will breach data protection law.

Recordings will comprise personal data, of all participants, and others who are identified in the discussions. Recordings may well include sensitive personal data: political opinions, information about health or disability, ethnic origin, trade union membership, religious belief, sexual orientation or criminal convictions.

To comply with GDPR, you must limit the data you collect to 'what is necessary'. In other words, if there is a less intrusive alternative that meets your needs, you should use that option.

Video recording a meeting will be more intrusive (for all participants) than making an audio recording; which will in turn be more intrusive than making written notes. For example:

• Video will capture tone of voice, body language and facial expressions. If a person is distressed or angry, it is likely to capture more of this than would be expressed in written minutes.
• Video will capture a person's image, age, gender, and potentially race, religion (via the wearing of certain items), and some disabilities (eg. facial disfigurement).
• Even if video backgrounds are blurred (to avoid collecting footage of a person's home), you could still inadvertently collect audio of third parties in the home.
• If video footage is shared inappropriately, by mistake or otherwise, there is greater risk of misuse, or harm to participants.

If you would have considered written notes sufficient, had the meeting been face-to-face in the workplace, think carefully about whether it is really necessary to video record the remote meeting. In line with this approach, ACAS guidance confirms that, for most disciplinary or grievance meetings held by video, there will be no reason to make a video recording of the meeting.

There may be exceptions. For example, recording might be justified if there is a particular need for a verbatim account of the meeting; an employee's first language is not English; or it is a reasonable adjustment in light of an employee's disability. Even in these cases, however, you should always consider whether there is a less intrusive alternative, for example, an additional note-taker, or using audio rather than video recording.

Can't we just record a meeting, if the employee agrees?

An employee's consent to record a meeting is likely to be 'invalid' for data protection purposes - this is because the imbalance of power between employers and employees means it is unlikely that consent can be 'freely given'. This will apply to all of the employees who are attending. Importantly, this means:

• You can’t rely on their consent to justify your recording – you need another legal basis for this, such as the possible exceptions mentioned above.
• If you have a justification for recording, you don't need to ask participants for their agreement to it. However, you would need to inform them all in advance (as discussed below). Of course, once you inform them, they may well object, and refuse to attend. How you deal with this will depend on the circumstances.

Do you really want to record the meeting?

Even if recording is lawful, it's worth pausing for thought.

Anyone involved in the meeting may want a copy of the recording, perhaps to check that any note produced is indeed an accurate reflection. If an employee makes a subject access request, you may need to provide a copy. In addition, you might need to disclose the recording as evidence in any subsequent litigation. Would these always be desirable outcomes for you?

What if employees record meetings?

Before meetings, remind employees (and anyone accompanying them) that they should not make electronic recordings of these without your agreement. Ideally, this should also be clearly stated in your relevant policies. In reality though, this could be difficult to police.

If an employee asks to record a meeting, you can refuse unless your policy allows them to do this (which would be very unusual), or it is reasonable to allow it for some other reason – such as the exceptional cases discussed above.

If you are planning to record a meeting…

If your particular circumstances mean that you intend to make a video recording:

• Carry out a 'data protection impact assessment' first, to identify your legal basis, assess the risks and identify the steps you can take to mitigate those risks.
• Consider whether your data protection privacy notice includes sufficient information relating to the video recording – if necessary, update it and communicate the update.
• In addition to your privacy notice, give advance notice of the recording to all participants, for example, in the meeting invite.
• Store the recording securely and in a way that maintains the integrity of the information.
• Limit access to those with a 'need to know'.
• How long are you justified in keeping the recording? This will depend on your reason for recording: if this is to create a verbatim meeting note, delete the recording once this is done, unless there is another reason to keep it.
• What if the technology fails eg. the sound quality is poor? Consider having a note-taker take notes during the meeting in the usual way, as a back-up.

What if we've already recorded meetings?

Don't panic. Get in touch with us if you want to talk through a particular case; but certainly consider the comments above on secure storage, limiting access, and how long you retain the recording. Before you destroy a recording, if necessary, ensure you have produced agreed minutes / transcription of the meeting.

You can find detailed FAQs on data protection and HR issues on Workbox, our online HR and employment law site. If you want to discuss any of these issues, please get in touch with your usual Brodies contact.