The issue of covert recording within the workplace has become a serious problem, as more people begin using mobile phones to secretly capture private conversations.

Here Tina Chander from law firm Wright Hassall gives some advice to employers.

While using underhand methods to record 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.

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.

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 this evidence during a tribunal or appeal.

Protected by legislation

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 that 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.

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.

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

Despite it being a breach of contract, the availability of technology has given people the opportunity to make covert recordings 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.

Bio

Tina Chander is a partner and head of the employment team at leading UK 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.

Photo:  Tina Chandler