Careless talk costs employers?

Written by Ben Harvey, trainee solicitor at Blackadders LLP

Although the vast majority of employees will respect workplace privacy, covert recordings can pose a distinct threat to employers.

Introduction

In this digital age, countless workers carry smartphones that can act as state-of-the-art recording devices in their place of work every day. This paired with the growing sophistication of discreet recording technology, where pens may double as micro cameras, has employers understandably worried. Although the vast majority of employees will respect workplace privacy, covert recordings can pose a distinct threat to employers. This article explores the legal landscape surrounding secret recordings and what practical strategies an employer can establish to mitigate against the risks.

Legal Landscape of Covert Recordings

It is easy to understand why many assume covert recordings could never be admissible in an Employment Tribunal (ET). Businesses may hastily reason that acquiring evidence through this underhanded method breaches the right to privacy and therefore can never be relied upon. Jurists recognise that covert recordings may infringe on privacy rights, but this does not mean all secret recordings are unacceptable evidence.  

A covert recording can be admissible if relevance to the dispute can be shown. For example, if an employee secretly records a personal improvement meeting following poor performance and is later dismissed on the grounds of capability, that recording could be useful evidence. Despite this, the ET has not permitted any recording of private discussions between managers or third parties on the grounds of public policy where the law rightly prioritises an individual’s right to privacy in these circumstances. This remains the position unless the secret recording divulges that managers are acting in a discriminatory manner ‘behind the employee’s back’.

Ultimately, it is for a judge to decide whether a covert recording can be admitted or not. In making this judgement, a tribunal will carefully consider:

• what details were captured in the recording;
• the relevance of the recording;
• the other evidence available;
• the motivations of the employee;
• whether the employee disclosed the existence of the recording at the outset of the tribunal proceedings; and
• whether admitting such evidence would contravene public policy.

Why would an Employee make a Secret Recording?

Thankfully, it is rare for employees to make covert recordings, however, some situations arise that push employees to take such action. The most prevalent of these scenarios are laid out below:

Obtaining evidence of misconduct: Employees may feel compelled to record discussions where they believe colleagues, contractors, suppliers, managers, or individuals involved with the business are engaging in inappropriate behaviour.

Supporting a grievance: If an employee believes they are being treated unfairly, they may record conversations with management to aid in a grievance procedure.

During formal meetings: Employees may want to guarantee that a record exists of a conversation, especially if they feel that contentious issues could be misrepresented further down the line. Recording a formal meeting is arguably less intrusive as both parties expect minutes of what was said to be taken anyway.

It is important to remember that an employee may not have malicious intent when they make a recording. They are usually only trying to shield their interests, particularly if they feel they have been wronged in some way.

Covert Recordings and Internal Investigations

An employer may encounter a situation where an employee has covertly recorded an incident that sparks the need for an internal investigation. This places the employer in a challenging position.  The substance of the recording might prove valuable, nonetheless, the method of procuring the evidence may contravene the organisation’s internal policies or code of conduct. Employers should weigh the significance of the content revealed by a covert recording against the fact that it was obtained secretly.

Obtaining evidence this way may result in the employee who took the recording being disciplined alongside the wrongdoer. Employers must be cautious if they respond by disciplining the recorder if discrimination or harassment is alleged. The employer must avoid “victimising” the employee for disclosing this type of misconduct. They must be clear that any sanction is due to how the evidence was gathered, not the fact that the complaint was raised. They must engage in a balancing act between discouraging secret recording while  respecting an employee’s right to expose potential wrongdoing.

What are the Practical Steps for an Employer?

It comes as no surprise that secret recordings compromise the essential trust found in any healthy employment relationship. To foster this trust and diminish risks, employers should establish a robust policy clarifying their position. Employers may wish to adopt the following measures:

1. Establish Clear Guidelines on Covert Recordings

The first step is to articulate the employer’s attitude on covert recordings and staff recordings in general. Businesses could incorporate their guidelines in employment contracts, policies, or codes of conduct. Plainly stating that recording other employees is prohibited (unless prior consent is granted) sets clear expectations for behaviour among staff. It is vital that employers regularly review these policies to ensure that recordings are still being handled appropriately and that both the employer’s and the employee’s rights are upheld.

2. Assess the Legitimacy of Covert Recordings

An employer could be tempted to rely solely on internal policies to justify a blanket ban on secret recordings. As previously discussed, a covert recording may be admissible as evidence if an ET deems it reasonable.  If the recording was made for a legitimate purpose, it could be used as evidence in proceedings. An employer should apply the reasonableness test when evaluating covert recordings, stepping into the shoes of an ET judge.

3. Review Data Protection Regulations

Finally, employers must also consider their data protection obligations. These recordings will most likely contain personal data, and processing this data could trigger relevant data protection regulations. If an employer intends to process a covert recording, they must ensure it is processed in accordance with their own data privacy notice and existing data protection policies.

Conclusion

Covert recordings are a nuanced problem for employers, with moral, legal, and privacy factors all playing a part. It may feel overwhelming for employers as they attempt to navigate the complexities that come with covert recordings. Yet by setting forth robust policies and critically assessing the legitimacy of recordings, any employer will have the necessary tools to tackle the dangers head-on.

Written by Ben Harvey, trainee solicitor at Blackadders LLP