Operational efficiency HR toolkit
Legal-ease
Secret recordings in
the workplace
With the omnipresence of
smartphones, secret recordings in
the workplace have become an area
of law that is troubling both
employers and employees.
Producing secret recordings at
work is certainly a far easier task
than it once was, and a new digitalsavvy
generation is coming into the
workforce for whom filming
or audio recording is part of daily
life. This means that something that
was once considered devious and
clandestine is now seen by many as
a reasonable and familiar act within
the professional environment.
A recent employment appeal
tribunal (EAT) judgment adds to
the suggestion that there has been a
shift in attitudes. In the case of
Phoenix House v Stockman the EAT
found that an employee’s covert
recording of a meeting did not
necessarily breach the implied term
of mutual trust and confidence, and
dismissed the employer’s argument
that the employee’s award should be
reduced to nil.
Ruling in favour of the employee
in this instance shows that it is
certainly not a clear-cut issue.
In its judgment the EAT
acknowledged that recordings such
as these can serve many purposes.
For example, they may be made
simply to keep a record of what
was said, or to provide protection
against misrepresentation by
the employer.
The extent of the employee’s
‘blameworthiness’ will now
therefore be relevant, and whether
or not the employee was specifically
told not to record conversations will
be crucial.
Clear policies make a big
difference here. These should form
part of an induction process and
part of annual refreshers around
respect in the workplace and data
protection compliance obligations.
Where there are informal or
formal procedures it may be
appropriate to remind colleagues
that recordings cannot be made. A
policy around bringing recording
devices, especially personal phones,
into meetings is also paramount.
If an employee’s covert
recording is brought to an
employer’s attention the
employer will need to assess all the
circumstances relating to the
recording. This would include the
reason it was made, how it was
made, how it would be used, the
employer’s policies, and the
awareness of the employee in
respect of these.
What the recording shows is also
another key factor affecting what
the appropriate response should be.
While there may be concerns about
a recording being made in the first
place, it may be that the recording
can’t be ignored given the
seriousness of its contents. For
example, where a recording shows
there has been a breach of health
and safety then this must be
followed up.
Whether action may be taken
against the employee who made the
recording depends on whether it
was reasonable in the circumstances
for a recording to be made. Was
there another way for the breach to
be brought to an employer’s
attention without a covert
recording? In many cases there
could be.
Ultimately, employers may want
to update their disciplinary
procedures and reassess existing
policies around covert recordings in
the workplace as it is an area likely
to develop.
Alison Weatherhead is a partner
at Dentons
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