Covert Recording in the 'Workplace' - When Might it be Lawful?Posted in : Supplementary Articles NI on 7 January 2021
In July 2020, the CIPD published an extensive report into workplace technology. Amongst its key findings were:
- 45% of employees believe that monitoring is currently taking place in their workplace - wherever that might be
- 86% believe that workplace monitoring and surveillance will increase in the future
- 73% of employees feel that introducing workplace monitoring would damage trust between workers and their employers
Of course, the other side of the coin is that it has never been easier in these days of remote working for employees to covertly record private and confidential meetings from wherever they are based. In this session, Louise McAloon, Partner, Worthingtons Solicitors, sets out when it will (and will not) be lawful for employers and employees to covertly record each other’s activities or interactions, wherever the ‘workplace’ might be located.
Please note: The session recording and subsequent paper below are taken from Legal Island's Annual Review of Employment Law conference on 5th November 2020.
When might it be lawful for employers and employees to covertly record each other’s activities or interactions in the ‘workplace’?
Employers and employees may have good reason for covert recording. For instance, an employer may suspect an employee of serious misconduct, such as theft or claiming to be sick when not genuinely unwell, but requires concrete proof of this.
As for employees, they may wish to protect their position, or may themselves need proof of unlawful conduct. However, covert recording can give rise to a host of legal challenges. Employers owe their employees privacy and data protection obligations, which would almost certainly be breached should managers and bosses decide to routinely covertly record meetings or other conversations. In addition, recordings by employees could capture confidential business information or trade secrets, with the risk of further dissemination or may breach the implied term of trust and confidence.
The constraints imposed on the processing of personal data by the GDPR – in particular, the fact that employees have the right to be informed that processing is taking place – make it very difficult for an employer to undertake covert recording lawfully. An employer who wishes to do so would need to establish either:
- that what is being recorded does not amount to processing of ‘personal data’, or one of the specific grounds for exemption from the data protection provisions.
- The circumstances in which an employer can rely upon either of the above are limited. The concept of ‘personal data’ is broadly defined with the result that in most cases the recording of activities, such as meetings and telephone calls, will entail the recording, and thus processing, of personal data.
‘Personal data’ is defined as ‘any information relating to an identified or identifiable natural person’, known as a ‘data subject’. It goes on to clarify that an ‘identifiable natural person’ is ‘one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person’.
Personal data may also include ‘special categories of personal data’. These are more sensitive than ‘ordinary’ personal data and can only be processed in more limited circumstances. The ‘special categories of personal data’ set out in Article 9(1) GDPR cover data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, and the processing of genetic data, biometric data, data concerning health or data concerning a natural person’s sex life or sexual orientation.
However, given that a decision to covertly record a telephone call or a meeting will be made with a view to collecting information, it is highly unlikely that it would be possible to avoid processing personal data. It would be very risky for an employer, minded to carry out covert recording, to assume that there will be no discussion of personal data relating to employees (and, even those present on the call or in the meeting). In some scenarios, of course, the aim of a covert recording will be to obtain information about an individual.
Given that, by its very nature, a covert recording would fall foul of the first data protection principle, because the individual would not have been informed, it is necessary to identify an exemption that might apply. The particular exemption that might apply in an employment context for the purposes of covert recording is the ‘crime and taxation’ exemption contained in para 2 of Schedule 2 to the DPA 2018. This applies where, among other things, the personal data is being processed for the prevention and detection of crime.
But the exemption can only be relied upon where an employer can show that informing the employee that he or she is being recorded would be ‘likely to prejudice’ its purpose/s of processing (para 2(1)) – here the prevention or detection of crime. An example provided by the GDPR Guide is where informing an individual would be likely to prejudice an investigation because he or she might abscond or destroy evidence.
It follows that to rely on the exemption, an employer’s purpose for making a covert recording must be to gather evidence of a crime, or information that would enable it to stop a crime taking place. Accordingly, monitoring someone covertly because of suspicions that they are malingering would only be justified if the employer was prepared to pursue them for fraud. Before embarking on covert monitoring, the employer also needs to consider if it could collect the required information in a different way; but if it decides that such monitoring is the only way to gather the necessary evidence, it will need to document its reasons for relying on the exemption.
Employee monitoring is likely to amount to ‘high risk’ processing which will require a Data Protection Impact Assessment. This should document the specific need for monitoring and why the form of monitoring proposed is proportionate to meeting this need.
The ICO’s Data Protection Employment Practices Code, although not yet updated to reflect the DPA 2018, provides helpful guidance and good practice recommendations on covert monitoring (whether audio or video; it defines audio monitoring as meaning the recording of face-to-face conversations, not telephone calls). It states that:
- covert monitoring should only be used in exceptional circumstances for the prevention or detection of criminal activity or equivalent malpractice, and should normally be authorised by senior management. (The Code does not give any examples of ‘equivalent malpractice’, but the reference to exceptional circumstances implies that covert monitoring should not be used to detect routine employee misconduct)
- covert monitoring must be strictly targeted at obtaining evidence within a set timeframe and must not continue after the investigation is complete. It should not be used in areas which workers would genuinely and reasonably expect to be private, such as toilets or private offices, except in cases of suspicion of serious crime, in which case the police should be involved
- information obtained through covert monitoring must be used only for the prescribed purpose (such as the prevention or detection of crime). Other information collected in the course of monitoring should be disregarded and, where feasible, deleted unless it reveals information that no employer could reasonably be expected to ignore.
As data controllers, employers will have potential liability if they fail to comply with their statutory obligations. Individuals may bring a claim for compensation for breaches of the GDPR and DPA 2018 in either the High Court or the County Court. As well as being exposed to possible civil claims by data subjects, controllers may be subject to ICO enforcement action, including significant revenue-based fines for non-compliance and infringements.
Although the United Kingdom left the EU on 31 January 2020, GDPR continues to apply in the UK until the end of the UK–EU transition period, alongside the DPA 2018, and the two must be read together. Post-Brexit, there will be a UK GDPR and the key principles, rights and obligations will stay the same (although it remains to be seen whether the UK might deviate from this in the long term).
Article 8(1) of the European Convention on Human Rights (ECHR) provides that individuals have the right to respect for their private and family life, their homes and correspondence. This right to privacy extends to the workplace. The right is not absolute. Interference with privacy can be justified under Article 8(2) if it is in accordance with the law and is necessary in a democratic society to achieve one (or more) of the following legitimate aims: national security; public safety; prevention of disorder or crime; protection of health or morals; and protection of the rights and freedoms of others (here, the rights of employers).
The Convention is incorporated into UK law by the Human Rights Act 1998 (HRA). A claim may be brought in the civil courts against a public authority that has breached a Convention right. Common remedies include damages, a declaration that the claimant’s rights have been breached, an order overturning the decision complained about, and an order that the public authority should do something to remedy the breach. The HRA provides no enforceable right of legal action against private bodies. However, the HRA is used as an interpretive tool in cases involving all employers (including the private sector) as legislation must be interpreted in accordance with the Convention ‘so far as it is possible to do so’ and courts and tribunals fall within the definition of a public authority, meaning that they are bound by S.6 HRA to act compatibly with Convention rights. Consequently, a Tribunal must consider the application and impact of Article 8 when assessing the fairness of a dismissal under the Employment Rights (Northern Ireland) Order 1996. As some of the cases demonstrate, the fact that an employer has dismissed someone in reliance on evidence that has been obtained by covert recording does not necessarily render a dismissal unfair.
It should be noted that the application of privacy law in the UK will not be affected by the UK’s decision to withdraw from the EU. The Convention, which the HRA incorporated into domestic UK law, is an internationally binding treaty which is separate from the UK’s EU membership.
In Halford v United Kingdom 1997 IRLR 471, the ECtHR held that telephone calls from a workplace are covered by the terms ‘private life’ and ‘correspondence’ for the purposes of Article 8(1). Accordingly, where the employee had been given no prior warning that her telephone calls were liable to interception, she would have had a reasonable expectation of privacy in relation to those calls. The interception of those calls was therefore an unlawful infringement of the employee’s Article 8 rights. This case was applied in Copland v United Kingdom 2007 45 EHRR 37 in which the ECtHR considered the monitoring of an employee’s telephone, email and internet usage, and held that Article 8 was infringed where there was no information technology policy in the workplace and the employee was not told that she might be monitored.
In Bărbulescu v Romania 2017 IRLR 1032, B was dismissed for personal internet use at work, contrary to the employer’s policy, which strictly prohibited all personal use. The ECtHR held that B’s Article 8 rights had been infringed as a result of the employer’s actions. The restrictive internet policy meant that it was open to question whether there was a reasonable expectation of privacy in this situation. However, the Court noted that ‘an employer’s instructions cannot reduce private social life in the workplace to zero’. Respect for private life and for the privacy of correspondence continues to exist, even if these may be restricted as far as is necessary. In other words, an employer cannot simply grant itself absolute power to invade privacy by putting in place draconian policies. The Court concluded that B’s communications were covered by the concepts of ‘private life’ and ‘correspondence’ and, accordingly, his Article 8 rights were engaged.
In López Ribalda and ors v Spain 2020 IRLR 60, the ECtHR held that the Spanish courts had not failed to protect employees’ privacy under Article 8 by upholding an employer’s decision to instal hidden cameras to monitor suspected workplace theft. The ECtHR took the view that the employees still had a reasonable expectation of privacy because they had not been informed that video surveillance was taking place in that part of the shop. Accordingly, Article 8 was engaged. However, in holding that the surveillance was justified and proportionate under Article 8(2), the Court pointed to the employer’s reasons for the video surveillance – namely, the suspicion of theft based on significant losses recorded over several months, and the need to discover and punish those responsible. The surveillance lasted for only ten days and stopped as soon as the culprits were identified. The recordings were not used by the employer for any purpose other than to investigate the thefts. The extent of the losses suggested that several individuals had been involved and the provision of information to any staff member might well have defeated the purpose of the video surveillance. It was also relevant that the monitoring took place in an area that was open to the public, meaning that employees’ expectation of privacy was lower than in places that are ‘private by nature’, such as a cloakroom or a toilet, where a complete ban on video surveillance might be justified.
In Piggott v Manchester Community Transport Ltd ET Case No.2403554/17, an employment tribunal concentrated upon the nature of the employee’s activity when determining whether he had a reasonable expectation of privacy. P, a bus driver, was not aware that the CCTV in his vehicle also recorded audio. During a period of ‘layover’, he parked his bus in a bay, switched the engine off and telephoned his wife. When a member of the public approached to complain about him not picking her up, he refused to engage with her. As she walked away, he was recorded telling his wife that the woman was a ‘Spanish bitch’. Although the woman did not hear this comment, she nevertheless complained to MCT Ltd about the incident. P was dismissed for gross misconduct and claimed unfair dismissal. Analysing this claim through the prism of Article 8, the employment tribunal held that P had a reasonable expectation of privacy in his telephone call to his wife. He was on an inactive ‘layover’ period; was the only person on the bus; and was using his own mobile telephone rather than a work telephone. However, from the moment P was approached by the potential passenger, he was acting for his employer and could not reasonably expect his interactions to be private. He could have ended the call to his wife but he chose to continue the call at the same time as interacting with the customer. The tribunal concluded that MCT Ltd’s reliance on it in the disciplinary proceedings was justified under Article 8(2), and that he had been fairly dismissed.
The Tribunal noted that it was in P’s interest for the complaint to be investigated by consulting the audio recording to see if the complaint was well-founded, and no employer could reasonably be expected to ignore what that audio recording revealed. The handbook made plain what was expected of drivers when dealing with members of the public, but P had behaved in a rude and aggressive manner. The tribunal therefore concluded that P’s dismissal fell within the band of reasonable responses, despite the employer’s reliance on covert audio recording.
Finally, privacy issues may arise in connection with homeworking – a working practice that has significantly increased during the COVID-19 pandemic. In the absence of any case law directly on point, employees’ expectation of privacy may inevitably be viewed as higher in the home than the workplace, with the result that Article 8 will almost certainly be engaged if an employer covertly records an employee while he or she is working from home. It also seems reasonable to extrapolate from López Ribalda that it will be difficult for the employer to justify making such a recording.
Misuse of private information
Aggrieved employees may have a cause of action via the civil courts through the tort of misuse of private information (or ‘breach of privacy’ in common parlance). The tort is the result of the way the UK courts have construed the tort of breach of confidence in order to give effect to the right of privacy in Article 8 ECHR.
The remedies that are available are an injunction and compensatory damages. The latter can include:
- special damages for actual pecuniary loss which is capable of being estimated in money, and
- aggravated damages (if aggravating circumstances exist), meaning additional damages to provide compensation for mental distress or injury to feelings caused by the manner or motive with which a wrong was committed or by the respondent’s conduct thereafter.
The tort applies to information in respect of which a person has a ‘reasonable expectation of privacy’. While claims for misuse of private information may be more common against the media, the tort’s scope is potentially far-reaching. The act of covertly recording an employee could itself be enough to found a claim for misuse of private information.
There are a number of reasons why employers may want specifically to monitor or even record the telephone calls and other telecommunications of their employees; for example, to establish that they are performing their duties to the required standard, to ensure the system is working effectively, and to detect any unauthorised use. They must, however, make sure they comply with the Investigatory Powers Act 2016 (IPA) and the Investigatory Powers (Interception by Businesses etc for Monitoring and Record-keeping Purposes) Regulations 2018 (SI 2018/356) (‘the Investigatory Powers Regulations’), which govern the interception, recording and monitoring of telephone calls and other telecommunication systems. The definition is wide enough to embrace telecommunication systems that provide video calls over the internet.
The Investigatory Powers Regulations do away with the need for consent with regard specifically to workplace monitoring in defined circumstances. Reg 3(1) and (2) authorises businesses to monitor or record communications on their telecommunications systems without consent for any of the following purposes:
- to establish the existence of facts relevant to the business – this may include keeping records of transactions and other communications in cases where it is necessary or desirable to know the specific facts of the conversation. An example might be where, in the context of a contractual relationship that has been entered into over the telephone, there is a dispute in relation to the details of the relevant conversation
- to ascertain compliance with regulatory or self-regulatory practices or procedures relevant to the business – this would include monitoring as a means of checking that the employer’s business is complying with external regulatory or internal regulatory rules or guidelines
- to ascertain or demonstrate the standards which are or ought to be achieved by persons using the system – this could include monitoring for purposes of quality control or staff training
- to protect national security
- to prevent or detect crime – for example, monitoring or recording to detect fraud or corruption
- to investigate or detect the unauthorised use of telecommunication systems – for example, monitoring to ensure that employees do not breach company rules or policies on use of the email system or the internet
- to ensure the effective operation of the telecommunication system – this may include monitoring for viruses or other threats to the system.
It should also be remembered that – while the IPA and the Regulations deal only with interception – the GDPR and the DPA 2018 are concerned more generally with the processing of personal information. Therefore, when monitoring involves an interception which results in the recording of personal information, an employer will need to satisfy the IPA and the Regulations as well as the requirements of the GDPR and the DPA 2018.
Surveillance by public bodies
The Regulation of Investigatory Powers Act 2000 (RIPA) regulates the carrying out of covert surveillance by public bodies and authorities (such as local authorities and the police). Critically, private employers are not covered by RIPA and the Act only has limited application to public bodies in their capacity as employers.
In C v (1) The Police (2) Secretary of State for the Home Department IPT 03/32/H, the Investigatory Powers Tribunal (IPT) (the body with jurisdiction to hear RIPA complaints) held that a police force was not undertaking ‘directed surveillance’ when it carried out covert surveillance of one of its retired officers in order to determine the extent of his disability for the purpose of assessing his pension entitlement. RIPA only regulated the police’s ‘core functions’ and was not designed to cover its ordinary activities as an employer. Accordingly, the surveillance did not fall within the scope of RIPA and the IPT had no jurisdiction to hear C’s complaint that the surveillance breached Article 8 ECHR.
This does not mean that RIPA has no relevance in the employment field. In C v The Police (above), the IPT was careful to note that it was not appropriate simply to designate certain types of surveillance ‘employment-related’ and thereby assume that they fall outside the scope of RIPA. Surveillance pertaining to employment matters could still be covered by RIPA if, for example, it involved an employee engaged in activities that would compromise national security.
Employment tribunal claims
McGowan v Scottish Water 2005 IRLR 167, EAT. A public sector employee had been dismissed after his employer obtained evidence through covert surveillance of his home that he was falsifying timesheets. The employee claimed that he had been unfairly dismissed because his right to respect for his private and family life under Article 8 had been infringed. Article 8(1) was found to be engaged in the circumstances, as the EAT accepted that covert surveillance which involved tracking the movements of all the inhabitants of a home ‘raises… a strong presumption that the right to have one’s private life respected is being breached’. However, in rejecting the employee’s claim, it held that the employer’s action was justified under Article 8(2) as it was protecting its assets and was investigating what was effectively a criminal activity.
The EAT also rejected a claim of unfair dismissal in City and County of Swansea v Gayle 2013 IRLR 768. There, G had twice been observed by a senior colleague playing squash in a sports centre near the office while he was still clocked in at work. The employer hired a private investigator, who covertly filmed G leaving the sports centre on several further occasions. After the employer dismissed him for fraud, G claimed unfair dismissal. An employment tribunal found that the investigation was unreasonable in that it involved an unjustified interference with G’s Article 8(1) right. In its view, once G had been seen at the sports centre for a second time, the employer had all the evidence it needed to establish its reasonable belief in his guilt, and it was therefore disproportionate to initiate covert surveillance. The tribunal, however, went on to find that G was fully to blame for his dismissal and accordingly awarded him nil compensation. The Council appealed to the EAT against the finding of unfair dismissal.
The EAT overturned the decision. It held that Article 8(1) had not been infringed: the employee did not have a reasonable expectation of privacy when doing acts in public which defrauded the employer. In the EAT’s view, two legitimate aims behind the covert surveillance could also be identified for the purpose of Article 8(2): the prevention of crime, and the protection of the rights and freedoms of others – the ‘others’ here being the Council, which had the right to protect its money and to ensure that G behaved according to the terms of his contract.
The fact that the tribunal considered that the Council’s covert surveillance of G was unfair had no bearing on the fairness or otherwise of his dismissal. The EAT further commented that it is ‘never likely’ that an investigation will be held to be unreasonable because it is too thorough, at least without the nature of the investigation having in some other way made dismissal unfair.
Without a lawful basis for covert recording, an employer could be in breach of the implied term of mutual trust and confidence, entitling the employee to resign in response (once he or she finds out about the recording) and claim constructive dismissal. In deciding whether to uphold an employee’s unfair constructive dismissal claim, an employment tribunal would pay particular attention to Article 8 ECHR, weighing up the employer’s reason for covert recording against the employee’s right to privacy.
Kilday v MJM International Ltd ET Case No.4102298/13 The tribunal upheld the unfair constructive dismissal claim of a senior employee who walked out when he discovered a recording device hidden in a plant pot in his office. The tribunal observed that the company could have ‘legitimately taken steps’ to protect its business interests if it had concerns about K. However, the installation of a recording device was not a legitimate step to take and breached trust and confidence.
Price v Axis Parcel Service Ltd ET Case No.3329426/17. P had concerns that her employer, APS Ltd, was having discussions about her behind her back. On one occasion, she left her mobile phone in the office (while absenting herself) in order to covertly record a conversation between two colleagues. The more senior colleague referred to P’s work in disparaging terms and reported plans to remove P and replace her with a younger and cheaper employee, possibly by way of a fabricated redundancy situation. P was very upset and resigned over a week later. An employment tribunal upheld her unfair constructive dismissal claim. Despite accepting that the recorded comments were inaccurate and had been embellished, it nevertheless concluded that they amounted to a fundamental breach of the implied term of trust and confidence. While the recorded conversation was not calculated to destroy or seriously damage trust and confidence (since neither colleague anticipated that P would be aware of it), it was likely to do so, and that was sufficient to constitute a breach of the implied term. As there was no potentially fair reason for dismissal, the tribunal upheld her unfair constructive dismissal claim.
Sadiq v HBOS plc ET Case No.1805844/13. S worked in a call centre and was a trade union representative. In January 2012, he was given a final written warning because his employer, HBOS plc, believed he was deliberately avoiding taking customer calls. S’s partner, who also worked in the call centre, lodged a grievance claiming she was being treated less favourably because of her race. S gave evidence in support of her claim. Around the same time, HBOS plc became concerned by the call centre’s low utilisation rate. It targeted seven advisers, including S and his partner, by putting a trace on their phones so that every activity could be recorded and cross-referred to calls. S was called to a disciplinary hearing and dismissed for call avoidance. An employment tribunal upheld S’s claim for victimisation. In reaching this decision, it took into account a number of factors, including that the covert recording took place a few weeks after S had performed a protected act, when he gave evidence in support of his partner’s race discrimination allegations; that HBOS plc perceived S to be a troublemaker and could have viewed his support of his partner’s grievance as being unreasonable and disruptive, thereby providing a motivation to retaliate in response to his protected act; and that the normal procedure for dealing with any performance issues was to start by raising any concerns in a monthly one-to-one meeting, whereas here HBOS plc moved directly to covert recording.
However, even though S’s victimisation claim was upheld, his separate claim of unfair dismissal failed. The tribunal found that he was dismissed for a reason relating to his conduct – namely, the belief that he was deliberately avoiding calls, thus increasing the burden on his colleagues and adversely impacting customer service. Since S was the subject of a final written warning for identical misconduct, the tribunal held that dismissal was not outside the range of reasonable responses. In the tribunal’s view, the fact that the whole investigation process was based on an unlawful act of victimisation did not turn what was otherwise a fair dismissal into an unfair one.
Can employers treat covert recordings by employees as serious misconduct justifying dismissal?
To constitute a repudiatory breach of contract, an employee’s behaviour must disclose a deliberate intention to disregard the essential requirements of the contract of employment. The threshold for repudiation is often expressed by reference to the implied term of mutual trust and confidence. In other words, gross misconduct will be committed if an employee has, without reasonable or proper cause, acted in a manner calculated or likely to damage the relationship of trust and confidence. Given the potential for covert recording by employees, some employers may specify in their disciplinary rules that it is a form of gross misconduct. However, doing so does not mean that a court or employment tribunal will necessarily agree in the event of a claim.
Phoenix House Ltd v Stockman (No.2) 2019 IRLR. The EAT stated that covertly recording a meeting would generally amount to misconduct, save in the most pressing circumstances. In other words, a warning would be appropriate provided a fair disciplinary procedure is followed. However, the Appeal Tribunal did not accept that covert recording would inevitably undermine the relationship of trust and confidence, such that it would amount to gross misconduct. In order to decide whether or not that was the case, all the circumstances would need to be considered, including the employee’s reason for making the recording, the employer’s attitude to such conduct, and any damage done to the employer. Culpability might vary from an employee who makes a recording (or lies about it), having been told this is not permitted, to the ‘inexperienced or distressed employee’ who makes a recording to protect his or her position but ‘has scarcely thought about the blameworthiness’ of doing so.
Aside from the employee’s reason for making the recording, the content may also be relevant when deciding whether dismissal is the appropriate course of action. In this regard, the EAT in Stockman contrasted a meeting concerning the employee where a record would normally be kept and shared in any event, and a meeting involving highly confidential business or personal information relating to the employer or another employee. Covert recording of the latter could well constitute a breach of the duty of fidelity, entitling the employer to dismiss for gross misconduct. It is also the case that if a covert recording resulted in a data protection breach, this would potentially amount to gross misconduct.
The EAT in Stockman intimated that covert recording would not amount to misconduct at all where ‘pressing circumstances completely justified’ it. Since the EAT did not elaborate on this, it is open to speculation as to what it had in mind. Pressing circumstances might, perhaps, include an employee who wishes to hide a disability that impedes his or her ability to concentrate or take notes, or an employee who has no other way of proving serious discrimination or other wrongdoing.
The principles in Stockman were set out in the context of awarding compensation for unfair dismissal. The employer argued that S’s compensatory and basic awards should be reduced to nil because she had covertly recorded a meeting with HR and that this was gross misconduct for which she could have been fairly dismissed. The EAT disagreed, holding that the tribunal had been entitled to reduce compensation by just 10% to reflect the fact that S had recorded a single meeting concerned with her own position rather than the confidential information of the business.
There is no reason why the guidance in Stockman should not apply to all types of covert recording in the workplace, not just in-person, face-to-face meetings, as was the case in Stockman. Arguably, the recording of informal chats would constitute a greater intrusion since, unlike meetings, it is not anticipated that any record will be kept. Another factor that might need to be weighed in the balance is whether the recording constitutes a breach of the right to privacy in Article 8 of the European Convention on Human Rights (ECHR).
Glen McCullough v Antrim & Newtownabbey Borough Council CRN 1384/16IT Decision issued December 2016
The claimant had been issued with a Final Written Warning on 13 March 2015 and was still current at the time of his dismissal. The claimant had also been demoted as part of the disciplinary sanction.
The claimant was subject to further disciplinary investigation in 2015. Following that investigation, a charge of unauthorised absence proceeded to the disciplinary process. In the course of the investigation process the claimant had produced a covert recording of a conversation between him and a manager, Mr Wilson on 30 June 2015 in relation to annual leave. A further charge of covertly recording a conversation with Mr Wilson was added to the existing charge of unauthorised absence.
The charge of unauthorised absence was not upheld. The charge of covert recording was upheld. The claimant was dismissed summarily with effect from 23 February 2016. His appeal was unsuccessful.
Relevant Commentary on Law
It is clear that employer’s internal rules cannot cover every single instance of misconduct, nor should they be expected to do so. Any list of examples of misconduct or of gross misconduct would necessarily be an non-exhaustive list. Nevertheless it is clear that an employer’s position is strengthened if the alleged misconduct has been specifically covered in their internal rules.
There appears to be no case law currently where breaches of privacy were argued to have amounted to misconduct or gross misconduct. Those matters nevertheless fall to be determined according to the ordinary statutory test.
The only time where this issue of covert recording appears to have been mentioned in current case law is the case of Chairman and Governors of Amwell View School v Mrs C Dogherty [UKEAT/0243/06/DA]. That case concerned not the potential application of breaches of privacy as instances of misconduct but rather the extent to which covert recordings would be admissible in evidence before employment tribunals.
The facts of the Dogherty case involved covert recordings of disciplinary and appeal hearings. The EAT rejected ‘entirely the proposition that what occurred could possibly amount to the interference with any aspect of the right to respect for family life enjoyed by any member of the panels of Governors’. It described that argument as an ‘extraordinary broad submission [which] was not supported by any authority’, and concluded that ‘the integrity of the relationship between a governor and a member of his or her family is not touched at all by admission of the evidence in this case’.
The EAT determined that members of the relevant panels had put themselves forward to carry out an aspect of voluntary work and in doing so were in the public domain while acting in that role. It stated:-
“It is difficult to consider them as retaining a right to personal privacy in relation to their participation (by words or conduct) in the socially important public or quasi-public function. In our judgment, the privacy element of the right to ‘respect for private life’ of such a school governor is not engaged at all in the present circumstances.”
Evidence & Decision
On 30 June 2015, the claimant telephoned Mr Wilson at work to request annual leave. He asked for the next four Tuesdays and Wednesdays off work. Given the conditions of his proposed phased return to work, that would have meant the entire month of July off work during the busiest time of the year for grounds maintenance. He later asked for the Wednesday off of that week. Later that day he went to see Mr Wilson in his office. He turned his phone to ‘record’ and recorded his conversation with Mr Wilson. He did not inform Mr Wilson that he was doing so and he did not ask Mr Wilson’s permission. He did not ask for written confirmation from Mr Wilson that his request for annual leave had been granted. He did not ask for an e-mail confirming the exact details of the leave granted in full. He did not bring a witness with him to observe the conversation. He chose instead to covertly and without permission record the conversation.
The recording of the brief conversation on 30 June 2015 was as follows:-
“The claimant :
I’ll sign them holidays if you want to put them through on the form, I’ll sign them now.
No I’ll put them on TMS.
Have you tomorrow in?
Have you the next month in?
Tomorrow’s in, yes.
Have you the next month in?
Yes I phoned HR and they’re going to check the phased return and get back to me. Jennifer’s off today so they said they would get her to ring me tomorrow.
Well I went on Monday and the doctor said anything in relation to the phased return you’ve to write a letter whatever you want to know write a letter.
Jennifer’s dealing with it.
That’ll do alright.
That recording was not determinative of the issue. It could be read as indicating that the leave for the next day (the first Wednesday) had been agreed but that leave for the next month, ie for the four successive Tuesdays and Wednesdays, had not been agreed but had been subject to a check by HR. It could also have been read as indicating that it had been agreed but that a separate issue relating to phased return had been referred to HR.
Both the claimant and Mr Wilson had a different understanding of what had been agreed and what had not been agreed in the course of the two meetings on 30 June 2015. Neither had followed the correct procedure for applying for or granting annual leave. That would have involved reducing the application for leave and the grant of leave to writing. Staff in that particular area generally did not follow the formal procedure for leave applications and informality reigned.
The claimant went on holiday to Scotland and returned on 12 July 2015. When in Scotland he had been phoned by the respondent to inform him that his leave had not been authorised. He disputed that allegation. On his return he was notified that he would be investigated on a potential disciplinary charge of unauthorised leave.
During the first disciplinary investigation meeting, the claimant did not disclose that he had a recording of the meeting, on 30 June 2015, between him and Mr Wilson. He had that recording with him on his mobile telephone. He did not alert anyone to its existence. The claimant knew exactly what was being put to him in the disciplinary investigation, ie that he had gone on leave on days in July without authorisation.
The claimant alleged that he had recorded the second meeting on 30 June 2015 with Mr Wilson because he felt that Mr Wilson had been out to do him harm.
The claimant denied throughout the process and throughout the tribunal hearing that he had been aware that he had not been permitted to record conversations without permission. However, during this meeting, on 12 August 2015, when it was put to him he said:-
“I am aware I am not permitted to do it, but this is to prove what I am saying.”
The claimant was dismissed for covert recording, taking into account the Final Written Warning. The issue in this case is the reasonableness of the penalty of summary dismissal. The respondent had been correct to have taken the extant Final Written Warning into account in reaching its disciplinary decision; both initially and on appeal.
The respondent did not include covert recording in either a separate policy or in the non-exhaustive list of gross misconduct or of (ordinary) misconduct. That in itself is not surprising. The use of mobile telephones for video recording or audio recording is a relatively new phenomenon. That said, the tribunal repeated Dr Ackah’s recommendation that the respondent should update its policies and its disciplinary procedure as soon as possible.
The claimant knew that he was not permitted to record another employee without permission. That is clear from his admission on 12 August 2015. Even without that clear admission (which the claimant had apparently forgotten by the time the tribunal sat), the respondent had been entitled to take the view that the claimant must have known that covert recording of another employee was wrong. Not every instance of potential misconduct must be set out seriatim in a disciplinary code before it can be regarded as misconduct.
That said, the respondent overstated the seriousness of the misconduct. It had not been a ‘gross invasion of privacy’. It did not interfere with private life (see Dougherty above). It did not amount to a criminal offence. This was not ‘Wikileaks’. This had been a sneaky and underhanded recording of an entirely work-related conversation in a work-related setting. Private life, family life and the European Convention had not been engaged.
The respondent’s witnesses, in evidence, took a purist and pedantic approach to covert recording. In their mind it was wrong; an offence of strict liability where the reason did not matter, whether that reason was valid, or as in this case, absurd. When asked whether covert recording might be permissible in the extreme case of a vulnerable employee being harassed, they conceded that it might be justifiable. This is an area of potential misconduct which is considerably more nuanced than the position taken originally by the respondent’s witnesses.
The tribunal concluded that the covert recording of a discussion with a manager was not gross misconduct. Applying the objective standard required under the 1996 Order, the tribunal concluded that it was ordinary, but nevertheless significant, misconduct. Again applying the objective standard, the tribunal concluded that the decision to dismiss the claimant had been fair. The instance of significant (but not gross) misconduct in covertly recording the second conversation with Mr Wilson on 30 June 2015, taken together with the final written warning, entitled a reasonable employer, acting reasonably, to have dismissed the claimant.
This claim of unfair dismissal was therefore dismissed. There was a separate claim in relation to notice pay. There is no statutory or other fixed definition of the circumstances in which an employer has the right to terminate a contract without notice; ie to summarily dismiss, on the ground of misconduct. It is largely a question of fact for the tribunal to determine whether the conduct was sufficiently serious to be regarded as repudiatory. In the present case there had been significant misconduct. The covert recording had clearly been wrong. However the respondent had regarded it in somewhat overblown terms; as a gross breach of privacy and a potential criminal offence. It had been neither. Even coupled with the final written warning, the decision of the tribunal is that the contract of employment had not been repudiated by the claimant. It had not been gross misconduct. It justified dismissal but not dismissal without notice. The claimant was awarded 12 weeks net pay in lieu of notice ie £2,679.96.
It is important for an employer not to have a knee-jerk reaction if an employee approaches it with a covert recording to support a complaint or grievance. While such recordings can constitute misconduct and perhaps justify some sort of disciplinary sanction, the employer still needs to address the employee’s complaint. If a serious issue comes to light, the employer should act quickly and take the necessary steps to resolve it. Tribunals are prepared to admit covert recordings as evidence when they are relevant to the issues in dispute. If the employer does not do so, an employee could resign and claim unfair constructive dismissal, on the basis that the treatment complained of, together with the employer’s handling of it, breaches the implied term of trust and confidence. Retaliation against an employee for reporting discrimination or other unlawful conduct could amount to victimisation.
Protecting confidential information
If an employer becomes aware that an employee has recorded confidential information – in breach of the duty of confidentiality or fidelity – this may warrant his or her dismissal. While damages can be sought against the employee where the employer has suffered loss as a result of the breach of confidentiality, an employer’s primary concern will be to prevent any such damage in the first place (or at least prevent any further damage). The most basic form of protection to be sought following an initial breach (or suspected breach) is a contractual undertaking. This is a signed written undertaking from the employee (or former employee) that he or she will not disclose or use the confidential information in question. In the case of a recording, it would be appropriate for the employee to undertake to delete the recording and to confirm that he or she has not made any copies, or to ‘deliver up’ the recording (and any copies) to the employer.
If the parties are unable to resolve the matter through undertakings, the employer may seek an injunction – typically an interim injunction – to prevent the disclosure or misuse of confidential or private information. The employer could also seek a ‘delivery up’ order in respect of the recording. An injunction will only be granted if there is a material and imminent threat or risk that the information recorded will be misused or disclosed.
In Syncreon Automotive (UK) Ltd and ors v Unite the Union and anor 2009 EWHC 437, the employer, SAUK Ltd, sought both an interim injunction and a delivery up order from the High Court. A covert recording of its private deliberations about pay negotiations had been made by trade union representatives, with whom it had been negotiating. An extract of the recording (plus transcript) was relied on in employment tribunal proceedings brought against SAUK Ltd by a former employee, to demonstrate victimisation and discrimination against a section of Unite’s membership. SAUK Ltd accepted that the recording could be used for the purpose of the tribunal proceedings, but sought to prevent the recording being distributed among its workforce or more widely. Unite’s solicitors offered to restrict use of the recording to the tribunal proceedings. However, Unite refused to undertake to provide SAUK Ltd with a complete copy of the recording and transcript. SAUK Ltd applied to the High Court for an interim injunction against Unite, to restrain them from using its confidential information. It also applied for delivery up of the complete recording and a full transcript. The Court granted the relief sought. It was clear that the information had been obtained by discreditable means. It was also obvious that what had been recorded was prima facie confidential since it concerned the ongoing pay negotiations between the parties. No identifiable public interest had been advanced entitling Unite to use or retain the information, except for the purposes of the tribunal proceedings. If not restrained, there was a real risk that the information might be disseminated more widely by the union and its members.
Data protection and privacy breaches
Once the employer becomes aware of an employee’s covert recording, it could also become complicit in any breach if it fails to take any mitigating steps. Article 33(5) GDPR and S.67(6) DPA 2018 provide that all personal data breaches must be recorded, including the facts relating to the breach, the effects of the breach and any remedial action taken in response. Personal data breaches likely to result in a risk to individuals’ rights and freedoms must be notified to the Information Commissioner’s Office without undue delay and, where feasible, not later than 72 hours after having become aware of it – Article 33(1) GDPR and S.67(1) DPA 2018.
Additionally, the breach must be notified to individuals where it is likely to result in a high risk to their rights and freedoms – Article 34(1) GDPR and S.68(1) DPA 2018. There is no set deadline for notifications to individuals; however, this must be done without undue delay.
An employer could potentially be vicariously liable for an employee who commits the tort of misuse of private information and/or who acts in breach of confidence as a result of carrying out covert recording. Wm Morrison Supermarkets plc v Various Claimants 2020 ICR 874. The Court confirmed that an employer can be so liable, giving the view that it makes no difference for the purposes of the doctrine of vicarious liability if an employee’s liability arises under statute instead of common law. However, it went on to hold that, on the facts, there was an insufficiently close connection between the breach and the employee’s employment.
It follows that an employer could be vicariously liable for data protection breaches if, for example, a line manager covertly recorded a meeting with an employee about performance issues. It is likely that a court would find that the line manager’s wrongdoing was so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. Employers should therefore take steps to curb covert recording, particularly where highly sensitive and personal information is at stake.
Courts and tribunals often express disapproval of such methods of gathering evidence. Nevertheless, they are willing to allow covert recordings to be adduced where they consider that their probative value outweighs the public interest in discouraging underhand or unlawful conduct. Crucially, there is no rule of law that evidence in civil proceedings must be excluded because it has been obtained improperly or illegally.
For any evidence to be admissible, the general rule is that it must be relevant to the issues that require adjudication. In the civil courts, if evidence is relevant, it will be admissible, unless it infringes an exclusionary rule, such as the ‘without prejudice’ rule. However, even if evidence is technically admissible (i.e. relevant and not subject to an exclusionary rule), the court still has a discretion to exclude it.
In Mustard v Flower and ors 2019 EWHC 2623, it was the claimant, M, who made covert recordings, during her examinations by the respondent insurer’s medical expert (following a road traffic accident). In deciding upon the recordings’ admissibility, the High Court observed that while the recordings lacked courtesy and transparency, they did not breach data protection legislation (since they were made in the course of a purely personal activity − i.e. her medical consultations). Furthermore, the recordings were probative and highly relevant. They brought into doubt the expert’s examination of M and it would be highly artificial for either side to give evidence without reference to those matters. M’s stated reason for wishing to record her examinations with the employer’s expert was to protect her interests, having regard to the vulnerabilities she maintained had resulted from the accident. It was understandable that such motivation, if genuine, applied with particular force to the respondent’s expert and not her own. The balance therefore favoured admitting the evidence.
The EAT in Chairman and Governors of Amwell View School v Dogherty 2007 ICR 135 confirmed that the fact that recordings are made covertly is not, of itself, a ground for ruling them inadmissible in employment tribunal proceedings. As with all types of evidence, the overarching factor governing their admissibility is relevance. Nevertheless, the underhand nature of the recording would be a factor for tribunals to weigh in the balance. The EAT went on to hold that the claimant in that case could not adduce as evidence in tribunal proceedings secretly obtained recordings of the private deliberations of school governors who had conducted her disciplinary and appeal hearings. There was a public interest in all parties maintaining respect for private deliberations made in such hearings, and thus the recordings and any transcripts of them should be excluded on public policy grounds. The claimant could, however, adduce clandestine recordings of the open part of the hearings, of which it was always intended that there would be a written record.
Fleming v East of England Ambulance Service NHS Trust EAT 0054/17 the EAT held that the balance tipped in favour of admitting, in F’s unfair dismissal and discrimination claims, a recording he had made of conversations which took place between panel members during breaks in his disciplinary hearing. Had the hearing been ‘the end of the story’, the EAT would have held that the public interest in preserving the privacy of private deliberations prevailed. This was because the deliberations were all directly related to the disciplinary hearing and it must have been in everyone’s contemplation that such discussions would be private. However, following the hearing, F had listened to the recording of what had been said during the breaks shortly afterward and had let his views of this be known to the employer before it reached the decision to dismiss him. That decision could not be properly assessed without reference to what happened after the meeting and to the actual content of the discussions which led F to adopt the position he did.
In contrast, the EAT in Williamson v Chief Constable of Greater Manchester Police and anor EAT 0346/09 held that an employment tribunal was correct to refuse to admit covertly recorded evidence of an employer’s private deliberations. During a break in W’s disciplinary hearing, he left his mobile phone in the meeting room to record what was being discussed while he and his representative were outside. He sought leave to introduce a transcript of the recording into evidence in support of his subsequent disability discrimination claim. The employment tribunal, having listened to sections of the recording, refused to admit it. The parties to the discussion had believed that they were having a private discussion and it was perfectly understandable that things would be said that would not be said in public. The tribunal also considered that the evidence was insufficiently relevant and that there had to be some very cogent reason why the normal principle of excluding such evidence should be overruled. An example of such a situation might be where one of the parties to the discussion said something which suggested that it was thinking or acting in a discriminatory way. The EAT upheld the tribunal’s decision on appeal. It rejected W’s argument that, in a discrimination case, the balancing test must always be exercised in favour of disclosure.
The above cases suggest that where recordings concern discussions behind closed doors, tribunals will scrutinise the relevant recording particularly carefully when deciding whether it is admissible. Not only would the evidence have to be relevant to the issues in dispute, but there would need to be some suggestion of impropriety by the employer, to tip the balance in favour of allowing the recording to be adduced in evidence.
Even if the covert recording is admissible, that does not mean that the court or tribunal should ignore any breach of Article 8. Excluding evidence is not the only weapon in a court’s armoury. It can, for instance, make an order for costs or reduce compensation accordingly.
Tan v Copthorne Hotels Ltd ET/2200986/17
Mr Tan was found to have been "prolific" in making covert recordings of his colleagues, both peers and those senior to him, as well as those junior to him and even a company doctor. The tribunal found this to be "a wholly unacceptable breach of trust" and that he was fully aware that this amounted to wrongdoing. Mr Tan's conduct was described as "duplicitous and underhand" and "undermining of the relationship of trust and confidence between the parties. Mr Tan was also found to have embarked on a "fishing expedition" in a claim for discriminatory pay. He introduced 17 comparators with nothing to indicate the basis upon which he said their pay was more than his on grounds of the relevant protected characteristic. He was also found to have used a "scattergun approach" to introduce causes of action that he believed to be behind his proposed redundancy.
The employer was awarded a total sum of £432,000 against Mr Tan. This included £278,000 in respect of the employer's costs plus interest, an additional sum of £27,800 pursuant to CPR 36.17(4)(d), and the employer's costs of the separate costs proceedings plus interest. This is believed to be the largest costs award made in a tribunal. However, the costs judgment does not give reasons, so it is unclear to what extent Mr Tan's conduct as described above contributed to the size of the costs award.
Take Away Points:
Key Considerations in relation to covert recording:
- Generally, covert recording will be inappropriate (and often unlawful) where the necessary information can be obtained by alternative means.
- Covert monitoring should only take place in exceptional circumstances, otherwise an employer may be in breach of GDPR, DPA and IPA provisions.
- Covert recording should be sanctioned by senior management, following legal advice.
- Undertake a data protection impact assessment prior to carrying out any covert recording to document the specific need being addressed, how the recording will be strictly targeted and limited in time and why covert recording is proportionate to that need.
- Covert recording can give an employee grounds for claiming constructive dismissal and possibly, a civil action for breach of privacy.
- Where appropriate reiterate at the outset of meetings that any unauthorised recording could result in disciplinary action and seek confirmation from attends that they are not recording the meeting. Ask all attendees to turn off their mobile phones before a meeting starts.
- Consider moving from the meeting room to conduct panel deliberations to reduce the risk of private discussions being recorded.
- In disciplinary cases, ask the employee to confirm that they are aware that covert recording is not permitted in the workplace. Reference any relevant policies/documentation highlighting this and seek confirmation employee was aware of same.
Draft Insertion into Disciplinary Policy & Procedure
Our aim is to deal with disciplinary matters sensitively and with due respect for the privacy of any individuals involve. All employees must treat as confidential any information communicated to them in connection with an investigation or disciplinary matter. You, and anyone accompanying you (including witnesses), must not make electronic recordings of any meetings or hearings conducted under this procedure
Add to examples of Gross Misconduct
- Covert audio or visual recording of employees, clients or persons with whom the Employee has dealings without their knowledge or consent.
Draft Insertion into Data Protection Policy/Annual Data Protection Training Material
Employees are not permitted to undertake or carry out any covert recording (audio or visual) of employees, clients or persons with whom the Employer has dealings with in the workplace or through the course of their duties, without their knowledge or consent.
Covert recording undermines trust and confidence and can breach data protection laws and confidentiality. It may result in disciplinary action up to and including dismissal.
Draft insertion in IT policy
Our systems enable us to monitor telephone, e-mail, voicemail, internet and other communications. For business reasons, and in order to carry out legal obligations in our role as an employer, your use of our systems including the telephone and computer systems (including any personal use) may be continually monitored by automated software or otherwise.
We reserve the right to retrieve the contents of e-mail messages or check internet usage (including pages visited and searches made) as reasonably necessary in the interests of the business, including for the following purposes (this list is not exhaustive):
to monitor whether the use of the e-mail system or the internet is legitimate and in accordance with this policy;
to find lost messages or to retrieve messages lost due to computer failure;
to assist in the investigation of alleged wrongdoing; or
to comply with any legal obligation.
This article is correct at 07/01/2021
The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.