When can I conduct covert recordings in the workplace?
This year, we have all had to adjust to new ways of working and, for many, that has included learning to work remotely. Aside from the obvious concerns of keeping motivation going, ensuring effective communication, and avoiding technical issues, there are other issues to consider when communicating with employees remotely.
An example may be if you are holding a disciplinary meeting with an employee over video conference. It has become easier over the years for disciplinary meetings to be secretly recorded anyway, as almost everybody can now walk around with a recording device (i.e. their mobile phone) in their pocket. However, where a meeting is held remotely, it may seem less risky, and more tempting, to get your mobile phone out and record audio from, or even video, the meeting.
Some employers have a practice of openly recording meetings and are therefore happy to have the employees record them as well. If there is transparency in these practices, then this will generally be okay. But what about secret recordings? When are they allowed? What is the risk of an employer doing it, and what can you do about it if an employee does it?
When can we covertly record our employees?
Generally, you shouldn’t – and only in exceptional circumstances.
Under Data Protection laws, you should only use covert recording for prevention or detection of criminal activity or equivalent malpractice. In these exceptional cases, you should still balance out whether the covert recording is necessary, and whether the information can be collected in a different way.
This means that managers should certainly not be carrying out routine covert recording of any types of employee meetings. As well as a fine from the Information Commissioner’s Office (who enforce data protection laws), you could be exposed to claims such as misuse of personal information or constructive dismissal, both from the employee and any other third parties who may also have been recorded in the process.
How can we prevent employees covertly recording us, and what can we do if we find out they have done it?
It may be surprising to some (particularly given the harsh take on employers) that an employee secretly recording a meeting will not always classify as misconduct or gross misconduct. It would be heavily dependent on all the circumstances, including the reasons why the employee carried out the recording, the impact on other individuals, and how clear it is that you do not allow it.
Another point to bear in mind is the admissibility of covert recordings in tribunal. This is not always straightforward, however, and the general position is that tribunals will take a ‘dim view’ of them – but may well allow them to be heard anyway.
Tips on avoiding issues
- Ensure your managers are aware of the potential risk of secretly recording their staff – they should only be doing it in the exceptional circumstances set out above and with senior managements permission.
- Have a clear and accessible policy in place forbidding employees from making secret recordings of other employees, including in meetings, at work.
- Ensure managers are trained on how to conduct meetings and are aware that they should not say anything that they would not be happy being recorded and potentially played in tribunal as evidence.