Are your employees recording you?

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Covert recordings at work, can they be used as evidence in a Tribunal

In the world of social media and smart phones, it is easy and quite common for information to be recorded and uploaded, and often we don’t give this a second thought.

But is this practice appropriate or legal in the workplace?

In recent months we have been asked if employees are able to use information they have secretly recorded with managers or colleagues as evidence at formal employment meetings or tribunals?

Whilst most employers for many reasons would consider this sort of conduct inappropriate or distasteful,  case law suggests that this in itself may not be enough to make them inadmissible as evidence.

Following decisions in one case, experts say that recordings of disciplinary hearings and subsequent meetings may be admissible provided the employer has been given the evidence before the tribunal hearing, including both the recording and its transcription so that its veracity can be checked. If there’s a lot of material to go through, employers should be told which parts are relevant to the proceedings.

In the same case, secret recordings of private conversations were treated differently. They were not deemed to be admissible unless the recordings revealed evidence of discrimination.

In general recordings made for “personal purposes” are not unlawful, however, sharing or distributing these recordings without the permission from all present is considered to be breach of employees right to privacy.

What does this mean for employers?

  • Ideally employers should be looking to cultivate a fair, open and supportive atmosphere in the workplace where agreements are dealt with swiftly and sensitively before they get out of hand.  Where there is trust and mutual respect in the workplace employees would not feel the need to make secret recordings.
  • Employers may want to strengthen their data protection and confidentiality policies to prohibit recording in their procedures and policies, but should be advised that this won’t deter some employees.
  • Employers and your managers should also remember that they may be recorded and that what they are saying may be admitted as evidence in a tribunal.

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