Covert recording in the workplace…

20th January, 2020

In a generation of technology, smart phones are increasingly becoming a workplace essential. We are now able to take pictures, videos and record audio discreetly with just the touch of a button, but what does this mean for employers?

Employment expert Ben Mason explains that in a recent Employment Tribunal case, an employee was deemed to have been dismissed unfairly, despite having covertly recorded an internal meeting with HR and disclosed the recording during the course of the tribunal claim.

There are a number of notable conclusions drawn in that case which are useful to employers. Firstly, covertly recording a meeting does not automatically undermine trust and confidence allowing the employer to dismiss, but, generally, it could amount to misconduct. It is also important to consider the reason for the making of the recording and to assess whether the employee is being vindictive or is simply vulnerable and intends to keep a record to prevent being misrepresented. Thirdly, the subject matter should always be put into context as there is a significant difference between recording an internal meeting which may be recorded in some format anyway or a general conversation as opposed to a highly confidential meeting.

The Employment Tribunal did however take into account the employee’s conduct in secretly recording the meeting and as such reduced the compensatory award by 10%. This was on the basis that although the employee recorded the meeting due to feeling extremely pressured at the time and had no intention to ‘entrap’, the individual had nevertheless covertly recorded the meeting without consent.

A further crucial point in this case was that the employer’s disciplinary policy did not expressly include covert recording in the list of possible gross misconduct offences. Whilst this will not be the deciding factor, an employer seeking to rely on covert recording as gross misconduct would be astute to set this out in their policies.

Ben’s three top tips:

• Include covert recording as an example of gross misconduct within your disciplinary and grievance procedure and communicate this to all staff.
• During any internal meetings, you may wish to set ground rules at the outset including their obligation not to covertly record the meeting and ask the employee to confirm that he / she agrees to abide by this rule. A blatant disregard may assist your defence at a later date.
• When reaching a decision in a disciplinary matter, consider deliberating elsewhere and away from the employee in case they are covertly recording the meeting. Do not allow individuals to leave property (such as a handbag) in the room.

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