22/08/13

Covert Recordings

I recently received a call from a client, about an employee who had covertly recorded a disciplinary meeting. My client was understandably aggrieved as they felt that the employee’s actions were underhand and breached their privacy. My client wanted to know whether the recording could be used if there was subsequent Employment Tribunal (ET) litigation.

Covert recordings are not uncommon. They take place in workplace meetings regarding redundancy, performance and disciplinary issues.

The issue of covert recordings has been considered by the Employment Appeal Tribunal (EAT), in the 2006 case of Chairman and Governors of Amwell View School v Dogherty  and recently in Vaughan v London Borough of Lewisham and Others and there has been recent press interest regarding Anthea Orchard, who alleged her employer, West Yorkshire Fire Brigade, monitored her covertly, using a private investigator and tracking device on her car, as they suspected that she was using her time off to run her part-time business.

Employee Recordings

In Amwell, the EAT admitted as evidence a recording of a disciplinary hearing that an employee had covertly made. They excluded the part of the recording covering private deliberations of the disciplinary panel on grounds of “public policy” as the employee was not present for this part of the hearing. The EAT commented that the balance between the conflicting public interests might well have fallen differently if the claim involved discrimination, for example, if a panel gave no reasoning for its decision, and the recording of private deliberations produced the only evidence of possible discrimination.

It was alleged that the recording breached the Governors’ right to privacy set out in Article 8 of the Human Rights Act 1998. It was held that Article 8 did not apply, as the Governors (who were recorded) were held to have waived their right to privacy as they were acting in a public, rather than a private, role.

In Vaughan, the employee secretly recorded conversations with her managers and colleagues. She made an application to the Tribunal to submit 39 hours of recordings to support her (unsuccessful) claims for discrimination and harassment on grounds of race and/or disability, and detriment suffered for alleged whistleblowing. There were no transcripts of the recordings.

The Judge dismissed the application, because Ms Vaughan refused to transcribe the recordings unless certain unacceptable conditions were met. She could not be specific about the content of the recordings and therefore the Judge could not be satisfied that the recordings were of value. The Judge also felt that admitting the evidence would be disproportionate due to the inevitable time and cost to the employer of reviewing the recordings.

The EAT dismissed Ms Vaughan’s appeal, but questioned the reasoning of the Judge. It felt that the Judge had been right to refuse the application, since neither the recordings nor any transcripts had been made available. However, it allowed Ms Vaughan to make a more focused application, properly supported by transcripts of the material sought to be relied on.

It is clear that this issue is far from resolved. However, employers can take some comfort from the fact that the EAT noted in Vaughan that making secret recordings is a “very distasteful” practice.

Employer Recording and Surveillance

There is no legislation that prohibits recording a face-to-face meeting by a business that is a non-public body. Covert “surveillance” is only regulated when it is carried out by public bodies (e.g. public authorities and the police).

An employer wishing to covertly record meetings with an employee should however consider whether it is acting in breach of the implied term of trust and confidence. This provides that an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

The Employment Practices Data Protection Code highlights that it is rare for covert monitoring of employees in meetings to be justified and it should only be done in exceptional circumstances, such as investigations into suspected criminal activity.

In practical terms, employers who are concerned about covert recordings in the workplace should review their disciplinary procedures to ensure employees are explicitly forbidden from recording hearings. This will assist with establishing clear “ground rules” for the conduct of hearings. When deliberating in private, disciplinary panels might also consider keeping a confidential note of any reasoning if concerned that allegations of discrimination may be made in the future. This note would not form part of the minutes provided to the employee, but could be produced to defend any allegations if litigation ensued.

22/08/13