Danielle Crawford looks at what employers can do to help limit their exposure to covert recordings.
If an employee believes that they are being treated unfairly, bullied, discriminated against or they have a strong suspicion that they are about to lose their job, it is not unusual for them to start gathering as much evidence as they can to support their case from an early stage. Increasingly, such evidence includes secretly recorded exchanges or meetings with the employee’s colleagues.
It is unlikely that many of the employees who resort to such tactics have properly considered the implications of secretly recording their colleagues, since they righteously view their actions as exposing wrongdoing. However, from the employer’s point of view, recording individuals without their permission is likely to represent a serious breach of the trust and confidence which is of paramount importance to the employment relationship. Such conduct is also likely to fall foul of the Data Protection Act 2018 unless the legitimate interests of the recorder outweigh the interests of those individuals being recorded.
Notwithstanding the fact that covert recordings are likely to be regarded as improper and potentially unlawful in the absence of a compelling reason (such as fear for personal safety), if recordings are relevant to the claim, Tribunals will generally allow them to be admitted as evidence (this is very common and most of our team has first-hand experience of this). Therefore, employers still need to guard against the cost and reputational damage that covert recordings can cause.
It goes without saying that the best way of mitigating the damage caused by secret recordings is to avoid making careless or improper statements which could be construed as unfair, discriminatory or otherwise unlawful. However, in reality, we know that organisations cannot always control the unfortunate choice of words some individuals use and we also know that some recorded conversations do not represent the full picture and can be taken entirely out of context. Occasionally, employees also deliberately provoke reactions and statements in order to set up the person being recorded. It is therefore worth considering the following precautionary measures:
- Ensure the organisation has a clear policy prohibiting covert recordings. It is also worth ensuring that this policy is repeated or referred to in the organisation’s disciplinary and grievance policies.
- At the outset of any informal or formal grievance, disciplinary, capability and redundancy meeting, telephone or video call, ask the employee (and any companion) to confirm that they will not record the meeting or call without permission.
- Prepare as much as possible for any meeting or call and consider using a script if there is any concern about clumsy comments that may be made.
- Have a clear GDPR policy and training. It is also worth specifically mentioning that recording colleagues without their permission is likely to be unlawful data processing and potentially a criminal offence.
- Prior to any meeting adjournments, ensure that there are no recording devices left in the room. It is again worth asking the employee and their companion to confirm they are not recording before and after any break.
We expect to see the case law further evolve in this area over the next few years, since this appears to be a common issue for employers. In the meantime, it is worth assuming that covert recordings will be admissible as evidence, albeit, the Tribunal is likely to consider the motive and character of the covert recorder when attaching weight to the evidence.