Many employees are still working from home. At some point, it may be necessary to hold disciplinary meetings, grievances, performance and absence meetings, redundancy consultations and even dismissals remotely, via video call.

It might be tempting for employers to hit the record button on video calls, but is this lawful, or desirable?

What difficulties does an employer face?

The first hurdle is GDPR and data protection. Recordings will comprise personal data, of all participants, and others identified in discussions. Video is more intrusive than audio recording and written notes. Video captures tone of voice, body language and facial expressions. It captures individuals’ images, which are likely to disclose religion (via the wearing of certain items) and some disabilities. Even if background footage is blurred, there is a risk of collecting audio of third parties in the home. If shared inappropriately, there is greater risk of misuse or harm.

To comply with GDPR, data collected must be limited to ‘what is necessary’: if there is a less intrusive alternative that meets business needs, that option should be used. If written notes would have been sufficient for a face-to-face meeting, is it really necessary to video record a remote meeting? ACAS guidance confirms that, for most disciplinary or grievance meetings held by video, there will be no reason to video record them.

There may be exceptions. Recording might be justified if:

  • there is a particular need for a exact word-for-word account;
  • an employee’s first language is not English; or
  • it is a reasonable adjustment in light of an employee’s disability.

Remember,  there may be a less intrusive alternative, such as audio recording or an additional note-taker. If there is, use that instead of video.

What if an employee agrees to the recording?

An employees’ consent is likely to be ‘invalid’ for data protection purposes. The balance of bower weighs heavily towards the employer. This means it cannot be used to justify recording, and there must be another legal basis, such as one of the possible exceptions above.

If there is a justification for recording, participants’ agreement is not necessary, but they must be informed in advance. The employee might object and refuse to attend. How you deal with this will depend on the circumstances.

If a meeting is being video recorded:

  • carry out a ‘data protection impact assessment’ first, to identify the legal basis for recording, and assess and mitigate risks;
  • ensure data protection privacy notices include sufficient information and have been communicated;
  • give all participants advance notice of the recording;
  • store the recording securely, maintaining the integrity of the information;
  • limit access to those with a ‘need to know’;
  • the retention period will depend on the reason for making the recording: if this is to create a verbatim note, delete the recording once this is done, unless there is another reason to keep it;
  • technology sometimes fails, so consider written notes as a back-up.

Policies should make clear, and everyone should be reminded, that participants must not make their own recordings unless this has been agreed in advance. In reality though, this is difficult to police.

Recording remote meetings is technologically easy. But careful consideration of the implications is essential before hitting the record button.

1 September 2020

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