Covert recording of conversations in the workplace

Q. We have an interesting problem this week where a member of staff had put their mobile phone on record and was recording conversations taking place in the office when he left the room. He was worried staff were talking about him. There is quite a bit of jurisprudence on the admissibility of covert recordings, but that's not the concern. In this scenario, the other staff members realised this was happening, the recordings, and have complained to management. It may result in a disciplinary hearing for the individual concerned for a breach of privacy and trust and confidence.

Seamus: This is an interesting one. So, essentially what we have, just to break that down a bit, is we have an employee who is taking recordings of colleagues after he or she leaves the room, probably concerned their colleagues are talking about them or making negative comments about them. The first protocol that comes to mind is is there a clear policy and procedure in place within the workplace about recordings? I certainly would see that come across when we're dealing with the likes of disciplinary investigations or disciplinary processes or grievances, whether it would be a clear policy to say that recordings are not permitted.

Scott: I've never seen a general policy that says you're not allowed to record your conversations or covertly record people because it's so obvious it's not what you do.

Seamus: There's clearly at the back of this a huge issue concerning relations between the colleagues if we're getting to the point where they're making recordings of each other. Where there isn't a clear policy, we are back to data protection at this point and what the Information Commissioner's Office has to say, which is you can't record unless there's consent to it.

I think that where there have been recordings taken place and there has not been consent provided, you are certainly at the point of looking at possible disciplinary proceedings against the employee who has taken those recordings, whether that's on the basis that there hasn't been consent or there's a breach of the workplace policy, again, I think it would depend on the nature of the recordings. The reason why the recordings were taken as to how far the employer could go with any penalty, but I think you're at a trust and confidence issue with an employee that would do that.

The other side of it then, just after some thought on this question, the other side and the more interesting aspect for me is really what does the employer do? We know that our audience is from an HR and mainly HR background. What does the HR officer do if an employee approaches them and says, "Here's a recording of my phone, I want you to listen to what these two people in the office have been saying about me. I find it's discriminatory, it's unfair. I feel I'm being bullied and harassed." There are all sorts of questions that arise there.

The question then is does the HR officer say, "Sorry, did you get consent? If you haven't got consent, I'm not listening to the recording, take it way?" Or does the HR officer say, "I'm in a quandary here. You're telling me there's something on the phone that's been said. You're coming to me with a grievance and complaint about that. Should I listen to it?" It produces an issue there, I think, for the employer as to what the employer should do.

Again, is there a policy and procedure in place in respect of that? I think the reality is where there is a complaint being made, it should be investigated. It may be that the HR advisor will listen to hear what exactly has been said. The outcome of that could be that there are disciplinary proceedings taken against the employee who recorded them, but also the employees who made the comments.

But it reminds me a tribunal case that I have that’s worthwhile flagging up because sometimes, there's an assumption that just because there's been a covert recording, when it comes to a tribunal hearing, that would be inadmissible. We've all had those cases where we stated at a disciplinary meeting or a grievance meeting and we said at the start of it there would be no recordings taken.

We actually record that in the minutes as well, just to make sure everybody's clear about it. And then when we get to the tribunal hearing, all of a sudden either through the discovery process or just before the hearing or at the hearing even, they'll produce recordings that have been taken. Where does that leave the parties and where does it leave the tribunal?

This case I had and the point I wanted to make on it is I had a client//claimant I acted for in a tribunal case. It was a constructive dismissal case where he resigned from his employment. It was a tough case to win to start with. We went down the tribunal route in terms of the constructive dismissal. The basis of what happened as that the employee was off on long-term sick leave. He was required to attend his place of work to collect sick pay on a weekly basis and anytime he went there, he felt that he was being intimidated and threatened.

The last occasion that he went, he brought his phone and he recorded the conversation that happened. In actual fact, he had been threatened with assault at that meeting. He never disclosed the recording at all to me until we were close to the hearing and at that point, we got a transcript and we served it on the other side. They were very clear they were objecting to it and the transcript shouldn't be included within the hearing bundle.

So, we end up before the tribunal panel. We advised the panel that we have a recording of a meeting. The employment judge almost staged a mini-hearing within the hearing itself. The outcome was essentially that the employment judge decided that she would listen to the recording and she would make a decision whether or not the panel should hear it. She did that and decided the panel should hear the recording.

The threat was clearly recorded at the time. It was there for all to see even though it had been denied and continued to be denied as the case ran. We were successful with the case, but I have no doubt we wouldn't have been successful without the recording. So, the point is don't assume because it's a covert recording that the tribunal will not want to hear it.

Scott: Okay. Assuming there's nothing bad or horrible comments on the recording, you've still got an underlying issue of a lack of trust.

Seamus: Absolutely, yeah.

Scott: This employee felt so deeply about something that he felt he had to record. The other two, now that they've been recorded and they don't know what's happening, they're not going to trust—it will take an awful lot of mediation or something to put these people back together again. It's going to take some kind of acceptance on behalf of this employee that covertly recording your colleagues is not the way to go about repairing a broken relationship. Chatting about somebody behind their backs isn't the way to go about building a relationship either.

Seamus: No. Absolutely.

Scott: You've got long-term issues for certain on this question.

Seamus: There's a bigger issue here for the employer outside of how they deal with it on a disciplinary basis. Does it result in a decision to move one employee to another part of the business where they won't be with those two colleagues? Isn't it possible that we can mediate and get them back together, get them at least on some sort of civil terms, but there's a fundamental problem here, absolutely.