Covert recordings – the secretive threat to businesses
In the past decade, the issue of covert recording within the workplace has become a serious problem for organisations, with employees using mobile devices to capture personal conversations and private meetings 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 discouraged by businesses, the availability of voice recording technology makes it very difficult to prevent entirely, so it is crucial that steps are taken to protect the company and its 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.
This shows that despite the practice being discouraged, businesses could still be put at risk if the issue is serious.
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 by obtaining a recording of the offending behaviour, whether it be a distasteful joke or unkind comment.
Such evidence will often be used to prove accusations of discrimination or 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.
In this case, it is the responsibility of the employer to investigate the matter, with a view to taking disciplinary action if necessary.
The other scenario is where an individual has secretly recorded internal management processes, such as appraisals or grievance hearings, with a view to using evidence gathered this way during an employment tribunal or appeal.
Although covertly recording a formal meeting may be viewed as less intrusive than normal work interactions, it is still considered misconduct if participants have not consented beforehand.
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, which could be applied to the workplace.
Despite these legislative implications, employment tribunals have the discretion to decide whether a covert recording should be admitted as evidence, so it is important that employers and employees are aware of the potential risks.
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.
Of course, this acknowledgment of contractual agreements is balanced against any ‘pressing circumstances’, which could potentially overrule an accusation of misconduct.
Taking the necessary steps
Despite the best efforts of organisations, there is only so much that can be done to prevent employees pressing record on their mobile devices and secretly capturing the conversations, or indeed video footage of unsuspecting colleagues.
However, there are some clear practical steps that could and should be taken to mitigate the risks, strengthening an employer’s position should a covert recording be 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.
While such actions are generally treated as misconduct and discouraged within businesses, there are some employees who feel aggrieved enough to record communications without consent.
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 a serious accusation does come to light, then act quickly and efficiently, taking the necessary steps to resolve the issue without prolonging the dispute.
If you’re unsure about the best course of action to take regarding covert recordings, then contact an experienced team of lawyers for advice.
About the author: Tina Chander is a partner and head of the Employment team at leading Midlands law firm, Wright Hassall and deals with contentious and non-contentious employment law issues. She acts for employers of all sizes from small businesses to large national and international businesses, advising in connection with all aspects of employment tribunal proceedings and appeals.
About the firm: Wright Hassall is a top-ranked firm of solicitors based in Warwickshire, providing legal services including: corporate law; commercial law; litigation and dispute resolution; employment law and property law. The firm also advises on contentious probate, business immigration, debt recovery, employee incentives, information governance, professional negligence and private client matters.