Handling covert recordings of alleged wrongdoing in the workplace

When a disagreement between a teacher and a pupil about self-identification became public, the practice of anyone covertly recording conversations in any workplace became worthy of discussion again.

The secret classroom recording captured the teacher reprimanding a 13-year-old girl for her comments about gender identity and for questioning a classmate’s wish to identify as a cat.

On the audio the teacher is heard to describe the views expressed as ‘despicable’ and advising the student to find another school in response to comments she made [1 cited 29.6.23]

The secretly recorded conversation, at a secondary school in Sussex, made headlines when it was leaked.

It was a main topic of conversation on TV and radio talk shows and there were calls for the teacher to be disciplined and sacked based on the exchange.

At the time of writing it is unclear if the teacher will face any disciplinary action as a result of the recording.

But it is reported that Gillian Keegan, the Education Secretary, had ordered a probe into the school following the incident [2 cited 29.6.23]

The question as to if any member of staff, in any profession, should ever lose their job based on evidence recorded without their knowledge or consent is never a straightforward one to answer.

Even the question around if an employer should ever use or rely on such evidence to discipline an employee is not clear-cut.

The ability for anyone to quickly record any alleged misconduct by an employee, is at their fingertips.

It is easy to use a smartphone to record or video all, or part of, a conversation or situation which could land a worker, who is blissfully unaware they are being recorded, in serious trouble.

Situations in which employees make an employer aware they have a secret recording, which shows some form of wrongdoing, are not uncommon.

It is something employers are likely to have to deal with at some stage, and should know how to deal with.

Unedited recordings made covertly can provide irrefutable evidence, which can help with the decision making in any type of work-related case.

But secretly recording conversations in the workplace will always raise a number of important issues around if it can be considered a breach of confidentiality, privacy or even an employer’s policies.

The legal standpoint on secret recordings at work is complex and can vary depending on the specific circumstances of each case.

A tribunal is not bound to treat the making of secret recordings as an automatic breach of the implied term of mutual trust and confidence between employer and employee [3 cited 29.6.23]

Nowadays it is certainly not uncommon for an apprehensive employee to clandestinely press record on their phone in a work-related situation where they may feel uncomfortable.

For example, in a meeting with a manager with whom they have a difficult working relationship and fear being mistreated, or a situation with a colleague whose conduct gives cause for concern.

The dilemma for an employer in such circumstances is what should it do if a covert recording  is presented to it, and it provides evidence of wrongdoing?

Is it ever acceptable for an employee to secretly record a conversation at work?

This is a legal grey area and whether it is ever acceptable will depend on the context in which such a recording is made.

If an employee covertly records a conversation that captures illegal activity or serious misconduct, it can be justified if it does reveal significant wrongdoing or if it protects their rights.

But a word of caution, it can cause legal and ethical issues.

There is a risk that if any employee is recorded without their knowledge it could infringe their privacy if it captures personal information. Any attempt to edit the recording to remove such information will inevitably raise legitimate questions about its credibility and reliability.

Additionally, recording someone without their consent could potentially be a breach of the General Data Protection Regulation (GDPR) if the recording includes any personally identifiable information [4 cited 29.6.23]

If a work-related matter reaches an employment tribunal, the court may accept secret recordings as evidence.

There is case law in which such recordings have been used, especially when relevant to a case and it does not involve a private or privileged conversation.

A covert recording of a disciplinary hearing could be admissible if it shows discrimination or unfairness by an employer.

In a case where an employee secretly recorded a disciplinary meeting and a private conversation between the employer’s representatives after she left the room, the employer objected to the admissibility of the private contents of those recordings. The recording was considered admissible evidence because it was relevant to the issues of the case [5 cited 29.6.23]

However, the admissibility of secret recordings as evidence in employment tribunals will always depend on the circumstances of each case and the discretion of the tribunal.

What should an employer do it presented with a secret recording that captures allegations of employee misconduct?

Address the issue and do not ignore it, regardless of how the recording has been obtained.

Handle the situation carefully and responsibly and seek expert advice from either HR or a legal professional.

The recording should be watched or listened to in order to assess the content and seriousness of the issue.

Normal company policies and procedures should be followed for dealing with any allegation of misconduct.

Any subsequent investigation should aim to gather as much information as possible to establish the facts of the case.

Treat the recording and any related information with the appropriate level of confidentiality. It should only be shared with those who have a legitimate need to know or are involved in the investigation process.

For any employer dealing with a secret recording that is presented to it, the case will always require careful handling to ensure the rights of all parties are protected and that any action taken is appropriate and legal.

Can an employer do anything to prevent employees from making covert recordings?

An employer can certainly take steps to deter employees from making such recordings, but there is nothing that can be done to completely prevent it from happening.

Perhaps the most important thing that any organisation can do, is ensure it has a policy making it expressly clear covert recordings are not allowed.

The policy should warn that any breach of it may result in disciplinary action. It should also detail why such recordings are not allowed by explaining it is designed to protect the privacy and confidentiality of the employer, employees and to maintain trust and transparency in the workplace.

As with any company policy it should be communicated to all employees and they should be asked to acknowledge receipt of it in some way.

A secret recording is often a last resort and a desperate move by an individual to capture evidence, which can help them to prove a particular point.

An employer should always ensure it deals with all employee complaints and disputes in a way that is fair and consistent. It will help to avoid situations in which an employee feels the only way they will ever be believed is to make a covert recording.

And finally

An employer can use covert recordings as evidence of employee wrongdoing if presented with a secret recording that shows any serious misconduct by an employee e.g. theft, fraud, harassment or breach of contract.

Always follow established, recognised and fair disciplinary procedures and policies, and act reasonably and consistently in dealing with the matter.

However, an employer should always be careful and seek expert advice on how to deal with any secret recording presented as evidence that is said to show employee wrongdoing.