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Covert recordings: underhand tactics or accepted practice?

Now that every employee has a covert recording device at their fingertips, in the shape of a smartphone, what can businesses do to protect themselves from potential damage? Tina Chander outlines the options

Tina Chander is a partner and head of the Employment team at Wright Hassall, a leading firm of solicitors based in Warwickshire. Wright Hassall provides 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

In recent years, the issue of covert recording within the workplace has escalated into a serious problem, as more employees are using mobile devices to capture conversations without consent.

While using underhand methods to record discussions 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.

In its judgment in the Phoenix House v Stockman unfair dismissal claim, EAT agreed that making a covert recording at work would normally be classed as misconduct and that if an individual intends to record a conversation, they should inform all parties first, making them aware that communications are on the record.

However, it also accepted a covert recording made by the claimant during her employment, deeming it too important to ignore, despite the employer contending that her compensation should be reduced.

The context of covert recordings
When it comes to covert recordings, there are two common scenarios that employers face.

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.

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 an employment 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, 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 expressly prohibit such practices, creating policies and principles that warn staff and make such actions a disciplinary offence.

Taking the necessary steps
Although it may be difficult to prevent, there are some clear practical steps that should be taken to mitigate the risks.

Firstly, it’s important to make people aware that covert recordings will seriously undermine trust between individuals, by taking time to create clear policies prohibiting such actions and making it clear that dismissal could be the ultimate consequence.

Implementing such a policy will improve transparency throughout the business, but it should be worded carefully, bearing in mind the practicality of gaining consent during informal social settings.

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
It may not be ideal, but the availability of technology means that covert recording is becoming more common. 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 take 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.