At Hospitality Worker, we believe that employment rights are a poor substitute for workers organising and challenging the power through collective action. However, in today’s climate, individual workers often have no option but to go down the legal route to resolve disputes with their employers. If this is the case, it is best to use the laws with a clear understanding: employment laws do not primarily benefit workers. Instead, they are largely an illusion, providing a semblance of justice in the workplace and acting as a diversion from the need for workers to join unions.

With that in mind, today we will examine the law regarding covert recordings of meetings with your employer. Under UK law, it is generally not a criminal offence for an individual to record a conversation in which they are participating, even if the other parties are unaware of the recording. However, as so often is the case, what is legal outside of the workplace is often not allowed by employers. Notably, making a covert recording at work can be judged to be gross misconduct, which may lead to dismissal for the individual involved.

Consequently, deciding to covertly record meetings with your employer can be risky. If you are caught, is there any defence you can offer? The answer is yes. Courts have ruled that making a covert recording does not automatically constitute gross misconduct; it may be treated as misconduct depending on the circumstances. The key factor is the intention behind the recording. If the court determines that the recording was made with the intent to “entrap” the employer—such as luring them into an action they would not typically take or capturing highly confidential information—then the recording is likely to be deemed gross misconduct.

However, if the reason for making the covert recording is simply that a nervous employee wants to ensure accuracy, protect against misrepresentation, or obtain advice later, it should be regarded as mere misconduct. This was the case in Phoenix House Ltd v Stockman, where a worker recorded their own meeting. The Employment Appeal Tribunal ruled that the recording did not capture confidential business information and was not made with manipulative intent; therefore, the dismissal was deemed unfair. Thus, if you are caught or if it is later discovered that you have made a recording, explaining your intention can help in your defence.

Another important consideration before making a covert recording is your company’s policies. Employers often include clauses that explicitly prohibit covert recordings, stating that such actions amount to gross misconduct and are likely to result in instant dismissal. Therefore, it is prudent to review all documents provided by your employer to ensure that they have not expressly forbidden covert recordings.

The Employment Tribunal Appeal Court has advised that it is good practice to request permission to record at the start of any meeting. Employers should not refuse this request if it is made due to a disability, such as anxiety or memory impairment, or another condition. Employers must consider their obligations under the Equality Act 2010, including whether reasonable adjustments may be required. Failure to consider such adjustments may allow you to file a discrimination claim with an employment tribunal.

Given that employers and any human resources manager they have in tow at a meeting often have limited knowledge of the law, asking to record a meeting for your personal use may put them on the back foot. If they refuse your request, be sure to document it and take notes during the meeting. In formal disciplinary or grievance meetings, if you have someone accompanying you, ask them to take notes. Whenever possible, do not attend a disciplinary or grievance hearing alone; you have the right to bring a colleague or a union representative. After any meeting, review your notes and add to them as needed to ensure they accurately reflect the discussion. If your employer provides you with any documents related to the meeting, check them for accuracy and challenge in writing anything you disagree with.

In Part Two, we shall delve further into the wonderful world of employment laws and covert recordings in the workplace. Please note that this article has been written by a workplace activist rather than a lawyer and should be treated as such.