The issue of covert recording within the workplace has become a serious problem in recent years, as the availability of mobile phones has allowed workers to capture private conversations without consent.
While using underhand methods to record conversations would usually be considered a serious breach of privacy, a recent judgement handed down by the Employment Appeal Tribunal (EAT) has clarified that it may be acceptable in the most pressing of circumstances.
Although such behaviour is discouraged by businesses, it can be difficult to prevent entirely, so it is crucial that steps are taken to protect your company and employees should an incident come to light.
What was the judgement?
Within the EAT’s judgement, it was agreed that making a covert recording at work would normally be classed as misconduct.
If an individual intends to record a conversation, then they should inform all parties first, making them aware that communications are on the record.
This judgment was held in relation to the case Phoenix House v Stockman, whereby the claimant disclosed, during her successful unfair dismissal claim, a covert recording she had made during her employment.
However, in this case, the nature of the recording was deemed too important to ignore and was accepted, despite the employer contending that her compensation should be reduced to reflect her pre-dismissal conduct in making the recording.
The context of covert recordings
When it comes to covert recordings, there are two common scenarios that most employers are faced with.
The first is proving misconduct by others, where an employee will secretly record a conversation to try and catch the culprit red-handed.
Such evidence will often be used to prove accusations of inappropriate behaviour, and although the employer may not condone the covert nature of the recording, its substance cannot be overlooked, particularly if the allegations are serious.
The other scenario is where an individual has secretly recorded internal management processes, with a view to using evidence gathered this way during an employment tribunal or appeal.
Protected by legislation
Covert recording in the workplace is an issue covered by data protection laws and internal contracts.
Recording a conversation would likely constitute the collection of ‘personal data’ under the new General Data Protection Regulation 2018 (GDPR), meaning the person who made the recording must comply with rules in relation to storage of the data.
However, it remains unclear whether an individual would face strict penalties for a breach, whereas an employer could expect substantial fines for not handling data appropriately.
Meanwhile, the subject of the recording may claim that their right to a private life under the Human Rights Act has been infringed.
Despite these legislative implications, employment tribunals have the discretion to decide whether a covert recording should be admitted as evidence.
Breach of contract
From a contractual perspective, making a covert recording can have serious implications if it’s in direct violation of pre-established principles.
Within most workplaces there is an obligation of trust and confidence between employees and employers, and secretly recording colleagues could qualify as a serious breach of contract.
The underhand nature of secret recordings is likely to cause friction internally, straining relationships throughout the business and damaging them indefinitely.
For this reason, most employers openly express prohibition on such practices, creating policies and principles that warn staff and make such actions a disciplinary offence.
Taking the necessary steps
Despite it being hard to prevent, there are some clear practical steps that should be taken to mitigate the risks, strengthening an employer’s position if a covert recording is made.
Firstly, it’s important to make people aware that covert recordings will seriously undermine trust between individuals, taking the time to create clear policies prohibiting such actions and making it clear that dismissal could be the ultimate consequence.
While implementing such a policy will improve transparency throughout the business, it should be worded carefully, bearing in mind the practicality of gaining consent during informal social settings with colleagues.
Of course, it’s also advisable to remind managers of their responsibilities, encouraging them to avoid saying anything which may suggest bad faith, even if it was taken out of context.
Protecting your business…
Whether you like it or not, the availability of technology has given people the opportunity to secretly record conversations at will.
Although there are some instances that qualify as ‘pressing circumstances’, it’s still wise for organisations to create policies that warn against such behaviour, explaining the impact such recordings could have on internal relationships.
If you’re unsure about the best course of action to take regarding covert recordings, then contact an experienced team of lawyers for advice.