With the sophisticated technology which exists today within an individual’s mobile phone, organisations must be aware of the likelihood of meetings and conversations being recorded by members of staff.
GDPR will apply to the recording of any meeting whether it is the employer or the member of staff. Provision should be made in the staff handbook to ensure that staff are aware that recording of meetings, work phones or CCTV will take place. The obligation is to inform everyone in advance of the recording about the precise purpose of the recording. Obtain specific consent, by the staff member completing a consent form on commencement of employment.
The General Data Protection Regulation 2018 (GDPR) now enshrined in the Data Protection Act 2018 deals with ‘personal data’. Employers may attract severe penalties for a breach of the Regulations. Staff members are also potentially at risk of a penalty from the office of the Information Commissioner if they covertly record colleagues.
The Human Rights Act 1988 provides privacy rights. Staff may claim that their right to a private life under the Human Rights Act has been infringed by covert recording or monitoring of their data. In Barbulescu v Romania1 the Grand Chamber of the ECtHR found that the covert monitoring of an employee’s email account resulted in the violation of his right to respect for private life within the meaning of Article 8 of the ECHR.
Protection through Policies
Ensure the staff handbook sets out a clear written permitted by members of staff whilst they are at work. This is to make certain that staff are aware that a breach of the policy could lead to disciplinary proceedings and is considered to be a breach of trust and confidence. The sanction for the breach of policy must be clearly written, namely a final written warning or dismissal due to the fact that they are likely to destroy any working relationship they had with those colleagues.
Staff members who are in a managerial position must be trained to guarantee that they know how to undertake processes such as disciplinary and grievance procedures. Therefore, it is imperative that they conduct themselves in an suitable way throughout the process by not discussing private issues that could be misinterpreted during the meeting with staff or deviate from the focus of the meeting whilst the member of staff is present in the room.
Implications from the Employment Tribunal
In the event of a termination of employment employers cannot rely on the Employment Tribunal (ET), taking the moral high ground by prohibiting the use of a covert recording in the ET. The ET has the discretion to determine whether such a recording can be admitted as evidence.
Below is a summary of cases where the ET has permitted the use of covert recording in evidence.
In Punjab National Bank v Gosain2 the Claimant lodged a tribunal claim alleging sexual harassment, sex discrimination and constructive unfair dismissal. Prior to her resignation the Claimant attended a grievance and a disciplinary hearing. She recorded both “public” and “private” conversations in those hearings. The Respondent objected to the policy which states that covert recording is not admissibility of the private contents of those recordings when disclosed. At a preliminary hearing the Judge ruled that the recordings were admissible at trial. The fact that the recordings were made covertly was not, in itself, a ground for ruling them inadmissible.
In Phoenix House v Stockman3, the Claimant disclosed during her successful unfair dismissal claim, that she had recorded a meeting with the Director of Resources without informing the Respondent. The Respondent argued that the compensation awarded to the Claimant for unfair dismissal should be reduced on ‘just and equitable’ grounds, had they been aware of the covert recording, they would have dismissed her for gross misconduct in respect of that act. The ET referred to the employer’s disciplinary policy and ruled that:
- Phoenix had no policy stating that staff could not record meetings
- The policy did not advise that covert recordings amounted to a disciplinary offence
The ET stated the employee’s reasons for making a recording was relevant when considering whether the act amounted to gross misconduct, the Claimant was not using it to deceive her employer. Therefore, this could not be considered gross misconduct. A vulnerable employee seeking to guard against misrepresentation is very different from a highly manipulative employee seeking to entrap their employer.
The EAT agreed with this judgment. In this case, the nature of the recording was deemed too important to ignore, despite the employer contending that her compensation should be reduced to reflect her pre- dismissal conduct in making the recording.
The situation will generally be viewed differently where there is wrongdoing by the employee. In the case of Lopez Ribalda v Spain 4 the European Court of Human Rights (ECtHR) held that Spanish shop workers’ right to privacy was not violated when a supermarket secretly installed hidden cameras to monitor employee thefts.
The supermarket caught Ms Ribalda and her colleagues on camera stealing items, resulting in five co-workers being dismissed. They made claims for unfair dismissal and alleged a breached of their right to privacy under Article 8 of the European Convention on Human Rights.
The Spanish Tribunal and High Court held that the employer had obtained the video surveillance lawfully with the legitimate appropriate aim of detecting theft. On appeal by the employees the ECHR considered that the covert surveillance was not justified as the employees had a reasonable expectation of privacy in the workplace, relying on human rights legislation.
The supermarket appealed to the Grand Chamber. It was held that there had been no infringement of Article 8 in relation to privacy. The intrusion was proportionate and the dismissals fair in order to catch the thieves.
In the case of Mr C H Tan v Copthorne Hotels Ltd,5 the ET awarded a six figure costs award when a claimant made covert recordings and sought to wrongly implicate colleagues with WhatsApp messages to support his employment tribunal claim. He had covertly recorded hundreds of hours of meetings and private conversations with colleagues, the ET described them as “deceitful” and “duplicitous”. When he was unsuccessful with his claims an award of costs was made against him for £432,000, one of the largest awards ever by an ET.
Employers need to ensure that where recordings are taking place the staff are aware it is happening. Accordingly, employers should:
- Ensure that they have a policy which is clear and well circulated
- At the start of every meeting refer to the policy
- Ensure there is a note taker
- During breaks for deliberation retire to a different room
- Maintain appropriate conduct and comments throughout the meeting and during any intervals
- Both parties to agree the written notes taken at the end of r the meeting in a
We have advised a number of schools on Covert Recordings at Work and can guide you through the process. For further information on Covert Recordings at Work, please contact Andrea Squires, Partner on 020-7593-5039 or email@example.com. For more general advice, please contact a member of our School HR team on 0345-026-8690 or schoolsHR@wslaw.co.uk.
-  ECHR 742
- López Ribalda and others v Spain  IRLR 60 ECHR
- ET 2200986/2017