04 December 2018

Covert recording: who's really listening?


#WorkingWorld

Where portable devices and app technology have become commonplace, it has never been easier to record conversations, both over the phone and in person. In fact, employees are becoming more inclined to secretly record conversations in the workplace – usually when they sense a dispute brewing and hope to use the content as internal leverage, or as evidence in a tribunal later down the line.

Whilst there is plenty of information available on what an employer should do in these circumstances, such as implementing policies prohibiting covert recording in the workplace (treating it as a serious misconduct offence, which may lead to dismissal) or expressly asking employees at the outset of meetings whether they are recording, there is very little advice for employees.

So, if you are considering secretly record a meeting or conversation at work, you may want to keep the following three points mind:

Can I rely on covert recordings as evidence?

Despite secret recordings being treated less favourably by the tribunal, they may still be admissible as evidence. You should be aware, however, that your employer should be provided with a copy of the recording and any available transcript well in advance of any hearing.

A tribunal is likely to only allow an employee to rely on the recording if it reveals evidence that goes to the root of the issue in the case, for example, if you are bringing a discrimination claim against your employer, then the recording must support your claim. It is also important to note that a recording of any conversation where you are not present is more likely to be excluded (for example, management discussions which take place after your disciplinary meeting, once you have left the room).

When a tribunal weighs up whether to admit a covert recording, they will consider the point in time the recording was disclosed in the proceedings, whether it would breach anybody’s human rights, and whether the evidence should be excluded on the grounds of public policy. Therefore, whilst it is not illegal per se to covertly record conversations at work, you cannot guarantee a covert recording will be admissible as evidence in tribunal.

It is important to remember that if a secret recording is admitted as evidence, your employer may rely on its covert nature as an illustration of how your conduct has destroyed the implied term of trust and confidence between the parties – a matter which is intrinsic to all employer/employee working relationships. As such, you may be better placed to seek permission to record, or take a contemporaneous note of the discussion. If your employer agrees to the recording, they may ask you to circulate a copy of the recording or transcript and agree not to disclose the recording to anyone else internally or externally.

It will not always be possible or appropriate to obtain permission to record, but you should be as frank as possible. It is imperative that you do not seek to entrap, but also be aware that a known recording may discourage a party from truly speaking their mind and a covert recording can sometimes be the only way to reveal real dishonesty.

What are my workplace policies?

You should familiarise yourself with any policies in place that may restrict covert recording. Check your handbook. There might be a standalone policy prohibiting covert recording and setting out the consequences of recording without consent (which may include dismissal for gross misconduct), or there might be rules or guidelines within an IT or data protection policy, or within the disciplinary and grievance policy.

There are circumstances where an employee may need to record a meeting, e.g. if said employee has a disability, which impairs their ability to take notes or memory. If this applies to you, you should discuss this in advance with your employer and seek their consent to permit this as a reasonable adjustment.

Are you recording me?

As covert recordings become more common, employers may open a meeting by reminding you of any relevant policies which prohibit recordings and ask you to switch off all electronic devices during the meeting.

Despite this, there may be circumstances in which an employer still suspects that a conversation is being recorded and so asks the employee whether this is the case. If you are recording, it is important to answer questions about this truthfully. If you deny the existence of a recording and then seek to rely on it later, your dishonesty may be used to discredit the recordings during proceedings (and could have an impact on your recoverable costs at tribunal). Similarly, this could also breach the trust and confidence between the parties.

Finally, if the meeting is being held to prevent an issue from taking an adversarial route, the aim of the meeting may be defeated altogether if you admit you are recording. Relationships may be better preserved if all parties discuss the option of recording in advance – with busy lives, having an accurate recording might serve as a usual memory prompt for both parties as discussions develop.

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