With more and more employees now working from home, and with many businesses now choosing this as a permanent mode of working, there is a possibility that employers may find themselves having to carry out disciplinaries, grievances, performance management meetings, and dismissals via video call.
When carrying out remote video calls there is always the option to record, which might be tempting, in order to have a reference for future use, should it be required. However, would this be considered lawful?
There are a number of considerations to be made, the most obvious being data protection. Video recordings will capture information such as personal data, not just of those participating in the call but of others that might be identified during discussions. The information disclosed in such discussions could include sensitive personal data, which the ICO refers to as political opinions, health or disability information, ethnic origin, trade union membership, religious belief, sexual orientation, or criminal convictions.
It is also important to note that video footage is very intrusive, certainly much more intrusive than audio recordings or written notes. Video doesn’t just capture the spoken word, but also body language and facial expressions, and the surrounding environment of those on the call, including any third-party conversations. If the video footage is shared inappropriately, there is a potential for misuse. Video footage also reveals characteristics such as age and gender along with the possibility of disclosing race, religion and certain disabilities.
Employers must ensure that they are complying with GDPR and, therefore, data collected must be limited to 'what is necessary'. If written notes or an audio recording will meet the needs of the business, then this is the option that should be taken. If the meeting was being held face-to-face, would you have video recorded the session? Probably not.
However, there could be exceptions to the norm and there might be justification in video recording if:
- it is a reasonable adjustment considering an employee's disability;
- there is a specific need for a word for word account; or
- an employee's first language is not English.
Even in these scenarios though, an audio recording may well suffice.
If an employee agrees to a recording, there is still a need for caution as consent is likely to be invalid for data protection purposes, due to the imbalance of power between employers and employees. Therefore, another legal basis is required, such as one of the scenarios listed above.
Always give careful consideration to the implications before hitting the record button. It may seem like the easiest and most sensible way of record keeping but could have a detrimental impact if the appropriate assessments have not been made.