With many employees still working from home, it may be necessary to carry out disciplinaries, grievances, performance and absence meetings, consultations and even dismissals remotely, via video call.
It might be tempting to hit the record button on video calls, but is this lawful, or desirable?
The first consideration is data protection law. Recordings will comprise personal data of all participants and others identified in discussions. That may include sensitive personal data, including political opinions, health or disability information, ethnic origin, trade union membership, religious belief, sexual orientation or criminal convictions.
Video is more intrusive than audio recording, which in turn is more intrusive than written notes. Video captures tone of voice, body language and facial expressions. It captures individuals' images, which are likely to disclose their age and gender and potentially race, 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 footage is 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.
But there may be exceptions. For example, recording might be justified if:
- there is a particular need for a verbatim account;
- an employee's first language is not English; or
- it is a reasonable adjustment in light of an employee's disability.
Even in these scenarios though, there may be a less intrusive alternative, such as audio recording or an additional note taker.
But what if an employee agrees to the recording? Employees' consent is likely to be 'invalid' for data protection purposes, due to the imbalance of power between employers and employees. This means it cannot be used to justify recording, and there must be another legal basis, such as the possible exceptions above. If there is a justification for recording, participants' agreement is not necessary, but they must be informed in advance. Of course, they may object, and refuse to attend. How best to deal with this will depend on the circumstances.
Even if recording is lawful, it's worth pausing for thought. Participants may want a copy of the recording, and if they make a subject access request, this may need to be provided. The recording may need to be disclosed in any subsequent litigation. Recording could also impact on individuals' behaviour, and perhaps how much they are willing to say.
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, due to particular circumstances. In reality though, this is difficult to police.
Recording remote meetings is technologically easy. But careful consideration of the implications is essential before hitting that button.
Kathleen Morrison is an employment and immigration practice development lawyer at Brodies LLP