Not so long ago, covert recording was something that was only carried out by unscrupulous journalists or shady characters working for secretive government agencies. A normal person could only attempt to do this using cumbersome handheld recording devices which they would need to conceal about their person or have at the ready, in the event of a telephone call from their employer. However, times have changed. Rapid advancements in technology means that almost everyone has a smartphone at their disposal and thousands of meetings are carried out by means of Teams, or some other form of video conferencing, every day. It has therefore now become very easy for anyone with the most basic knowledge of IT to carry out covert recording. So what does that mean for employers and employees?
Covert recording by employers
There may be many circumstances whereby employers can legitimately record their employees. For example routine meetings carried out over Teams might be recorded to make it easier for minutes to be drafted subsequently. Similarly, interviews carried out for the purpose of grievance or disciplinary proceedings are now often recorded to ensure that an accurate record is kept, or to make it easier to prepare notes or statements. However, in these circumstances the employer should make it clear to any employees involved that they are being recorded. They should also bear in mind that the recordings will amount to the personal information of the employees concerned and they should therefore ensure that these activities are covered by their privacy notices and that the data is stored in a way that ensures its security and confidentiality.
Covert recording however is a different matter entirely. There may be occasions when employers will want to do this, for example if they suspect some form of wrongdoing and want to catch the employee “in the act”. Is this ever justified?
Covert recordings will contain personal data and will therefore be subject to the GDPR and the Data Protection Act 2018. Article 5(1) of the GDPR sets out six principles which controllers must comply with when processing personal data. The first data protection principle provides that the processing of personal data must be lawful, fair and transparent. Article 6(1) of the GDPR sets out the six potential lawful bases upon which a data processor can rely and these include that the processing is necessary for entering into or performing a contract with a data subject, that it is necessary to comply with a legal obligation or that it is for the purpose of a legitimate interest pursued by the data controller. Save where the data processor is relying on consent, it must also show that the processing is “necessary”, which means that the onus is on the controller to show that its purpose cannot be achieved by less intrusive means. The constraints imposed by the GDPR on the processing of personal data therefore make it difficult for an employer to undertake covert recording lawfully.
This is confirmed by the ICO’s Data Protection Employment Practices Code which provides that covert monitoring, including covert recording, should only be used in exceptional circumstances such as for the prevention or detection of a crime, or some equivalent type of malpractice, and should normally be authorised at a senior level. It should also be strictly targeted at obtaining the evidence required to establish that the wrongdoing has occurred. Consequently, it should therefore take place within a limited time frame and should not continue after an investigation is complete.
It should be noted that the ICO Data Protection Employment Practices Code has not yet been updated to reflect the Data Protection Act 2018. The ICO is in the process of producing topic specific guidance on employment practices and data protection and has gone out to consultation on new draft guidance on monitoring at work. This came to an end in January 2023 but the new guidance has not yet been implemented. However, the provisions dealing with covert recording in the draft guidance are similar to those contained in the current Employment Practices Code.
In essence, covert recording goes against the principle of transparency which is fundamental under GDPR. It can therefore only take place in exceptional circumstances and there are also additional limitations on how an employer can collect and use data obtained in this way.
Covert recording may also breach Article 8(1) of the European Convention of Human Rights which provides that individuals have the right to respect for their private and family life, their home life and their correspondence. Their right of privacy extends to an individual’s workplace but can be justified in some circumstances. The convention is incorporated into UK law by virtue of the Human Rights Act 1998 and claims can be brought in the civil courts by an individual whose rights have been contravened, but this is currently confined to claims against public authorities or those who carry out functions of a “public nature”. However, the Human Rights Acts can also be used as an interpretive tool in a cases against other employers. It may therefore be used when determining whether an employer has acted reasonably in an unfair dismissal claim.
Covert recording without a justifiable reason, could therefore give rise to a claim for unfair dismissal, or may be used to found a claim for constructive unfair dismissal. An employer may also face the risk of reputational damage should it emerge that covert recording has taken place and this may also have a negative effect on employee relationships.
Covert recording by an employee
In practice most employers are more likely to face this issue than a scenario whereby they feel the need to covertly record their employees. Given the ease by which covert recording can now be carried out, employees may want to record a conversation with their employer or another colleague in order to capture evidence or protect their position. They may feel justified in doing so if they consider that they have been wronged in some way. Most employers would discourage and disapprove of such behaviour, but what should they do in practice should they encounter it?
The covert recording of colleagues may well amount to misconduct so employers may include this in their disciplinary policy or their disciplinary rules. There may also be situations where an employee is explicitly told that they should not record proceedings, for example in a grievance or disciplinary meeting or hearing. To disregard such an instruction may well amount to misconduct, or even gross misconduct. However, this is quite fact specific. The Employment Appeals Tribunal (“EAT”) considered the issue in the case of Phoenix House Limited v Stockman (2) 2019 IRLR960. The EAT said that covertly recording a meeting would usually amount to misconduct, but did not accept that it would inevitably undermine the relationship of trust and confidence between the employer and the employee, so as to amount to gross misconduct. All the circumstances would have had to be taken into account before deciding whether there was gross misconduct, including the employee’s reason for making the recording, the employer’s attitude to this conduct and any damage done to the employer as a result. The content may also be relevant. It was pointed out that there is a difference between the recording of a meeting involving the employee, where the content would normally be kept and shared in any event, and a meeting involving highly confidential information of a business or personal nature relating to either the employer or another employee. Whether there has been a data breach is also relevant, so a case where an employee has not only recorded information but shared it with a third party, may well be regarded as being more serious.
An employer should therefore avoid a knee-jerk reaction by assuming that any type of covert recording amounts to misconduct or even gross misconduct. There may be circumstances where an employee has covertly recorded another employee in order to record inappropriate behaviour or malpractice. The employee could, for example, have a genuine complaint against another employee or a manager and could be the victim of harassment or discrimination. Employers should be careful not to dismiss such a complaint just because it involves covert recording and they should still be taken seriously. Of course, such matters are often highly subjective and employers and employees may have different perspectives, for example, some employees may consider perfectly normal management practices to amount to bullying. The employer will therefore have to assess these cases on a case-by-case basis.
When an employer becomes aware that there has been covert recording of their employees by another employee, the employer will need to bear in mind that the recording will contain the personal data of that other employee. The employer may therefore need to consider how they can protect that information and ensure that it is not disseminated further. If an employee has recorded highly confidential or sensitive information about an employer’s business, the employer may also wish to consider whether there are any contractual provisions which would require the employee to return or delete this information. In either scenario, the employer might want to obtain undertakings from the employee to confirm that they will not disclose this information to a third party and will delete any copies.
There is some risk that an employer could be vicariously liable for the actions of an employee in unlawfully obtaining, disseminating or otherwise using the personal data of another employee. It was established by the Supreme Court’s decision in WM Morrison Supermarkets PLC v Various Claimants 2020 ICR874 that an employer can be vicariously liable for a data breach by its employees. It is therefore important that employers take steps to discourage covert recording of fellow employees, but also take steps to secure the data if they discover that covert recording has taken place.
The use of covert recordings in proceedings
Traditionally, both employment tribunals and the civil courts took a dim view of covert recording. However, this does not mean that they will not allow it to be used in evidence. A tribunal will need to consider whether the probative value of the recording outweighs the public interest in discouraging underhand or unlawful conduct. In the civil courts the issue is governed by the Civil Procedure Rules 1998. However, in practice, similar considerations will apply in both jurisdictions.
There is no rule that recordings are not admissible just because the evidence has been obtained unlawfully. Recordings will of course provide an accurate record of what was said and tribunals may be reluctant to disregard recordings which clearly contain relevant evidence. However, they may treat them with caution as one party will know that the recording is taking place, and may therefore try to deliberately steer or manipulate the conversation, whereas the other party will be entirely unaware. There are also some circumstances where a tribunal is unlikely to allow covert recordings to be adduced. For example, they would not usually allow a recording of a without prejudice conversation to be adduced nor would they allow a recording of deliberations which are intended to take place in private, for example, the private deliberations of a disciplinary panel.
What are the key take aways?
- Covert monitoring by employers should only take place in exceptional circumstances and it will be inappropriate – and often unlawful – where the necessary information can be obtained by alternative means
- Before carrying out covert recording employers may need to undertake a data protection impact assessment and should document why it is being carried out, and why covert recording is a proportionate of achieving that purpose
- Covert recording without justification may be unlawful and may breach the employee’s right to privacy. It may therefore give rise to civil liability or make a finding of unfair dismissal or constructive dismissal more likely
- Covert recording by an employee will usually amount to misconduct but it will not necessarily amount to gross misconduct. Employers should therefore consider all the circumstances and avoid jumping to conclusions
- Covert recordings may be admissible in evidence in tribunal or civil proceedings, particularly if they contain evidence which is highly relevant to the issues being decided
- Covert recordings may include the personal information of other employees and employers may need to consider how they can protect that information.