Danielle Crawford and Toni Vitale: The rise in covert recordings is no secret

Over the last few years, we have seen a significant increase in employees recording conversations with their employers in anticipation of litigation. This is not surprising in view of the fact that almost everyone now carries a smartphone capable of discretely filming or recording with a few swift swipes. Employers should therefore consider what they can do to help limit their exposure to the risk of 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 are likely to view their actions as simply exposing any perceived 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 (“DPA”) and will potentially be a criminal offence under Section 170 of the DPA, unless the legitimate interests of the recorder outweigh the interests of those individuals being recorded.

Covert recordings can also be a violation of the right to privacy of the individuals recorded under Article 8 of the European Convention on the Protection of Human Rights.  Article 8 of the ECHR provides that everyone has a right to respect for their private and family life, their home and their correspondence.  Even if a covert recordings containing private information is not shared or made public, the ‘intrusion’ of the recording alone is a breach of privacy.

Notwithstanding the fact that covert recordings are likely to be regarded as improper, potentially unlawful and even criminal,  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.  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.  We also know that some recorded conversations do not represent the full picture and can be taken entirely out of context.  Occasionally, employees even go so far as to deliberately provoke reactions and statements in order to set up the person being recorded. It is therefore worth Employers considering the following precautionary measures:

  1. Employers should implement a clear policy prohibiting covert recordings. It is also good practice to repeat or refer to this policy in the organisation’s disciplinary and grievance policies.
  2. At the outset of any grievance, disciplinary, capability or redundancy meeting/telephone call/video call, employers should ask the employee (and any companion) to confirm that they will not record the meeting or call without permission.
  3. Employers should prepare as much as possible for any formal meeting or call with employees. If the meeting is likely to cover a contentious subject, Employers may wish to consider sticking to a script to minimise the risk of clumsy comments.
  4. Employers should have a clear GDPR policy and training. It is also worth specifically highlighting the fact that recording colleagues without their permission is likely to be unlawful data processing and potentially a serious criminal offence.
  5. Prior to any meeting adjournments, employers should ensure that there are no recording devices left in the room. It is again worth asking the employee and any 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 covert recording is an increasingly common issue for many employers.  In the meantime, it is worth assuming that covert recordings will be admissible as evidence in the Tribunal, albeit, the Tribunal is likely to consider the motive and character of the covert recorder when attaching weight to such evidence.

About Danielle Crawford

Danielle advises both employees and employers on a range of contentious and non-contentious employment matters. Danielle is experienced in dealing with a wide range of employment issues ranging from everyday HR queries to multifaceted and complex disputes.

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About Toni Vitale

Toni is a partner and head of the Regulation, Data & Information team at Winckworth Sherwood. His considerable in-house experience enables him to offer practical, commercially-focused solutions in what is often a technical and complex area. After starting his career in private practice, Toni has held a number of positions as a senior legal adviser, General Counsel, Head of Legal and Company Secretary in household name businesses over the last 15 years, including IBM (where he was EMEA Data Privacy Counsel), Virgin Media, YouView TV and BGL Group (owners of comparethemarket.com). He was also Global Privacy Counsel at Willis Towers Watson.
Toni has assisted clients in the banking and insurance, retail, media, public (including Health and MOD), and telecoms and technology sectors on a wide range of privacy and cyber security issues, including regulatory and compliance investigations, profiling, data monetisation and data breaches. He has advised on GDPR, e-privacy, PECR, net neutrality, RIPA, reputation management and cyber security. He has consulted with CEOP, the Home Office and NTAC and given evidence to a Joint Committee of Parliament on the Data Communications Bill. He is also an experienced technology, IT outsourcing and digital media lawyer and has led negotiations in international commercial and technology engagements.

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