Covert Recording – How Employers Can Take Back Control

With smartphones everywhere, recording business meetings and conversations has become easy and common. If done covertly, this can cause headaches for employers, especially when these recordings end up on social media – leading to reputation, confidentiality, and data protection issues. Employers need to regain control, but they also need to understand that sometimes employees might feel justified in recording, especially if they’re worried about workplace behaviour and want to gather evidence. Here are some key points to consider:

• If an employee secretly records a colleague or manager, this may breach an employee’s implied duty of trust and confidence. This might be considered gross misconduct, potentially leading to a fair dismissal depending on the reason the recording was made, the business’s stance on workplace recordings, and how well this is communicated.
• Posting covert recordings on social media is clear misconduct. It can harm a business’s reputation and bring it into disrepute. A prohibition on sharing workplace recordings on social media should be included in any social media policy.
• Employees who are recorded without their knowledge might feel the employer has failed to protect them, risking constructive dismissal claims if they resign due to this breach of trust and privacy.

We have the following top tips for employers:

1. Implement a clear policy banning covert recordings in the workplace. 
2. Make it clear that making covert recordings (and, in particular, sharing them or making them public) is potential gross misconduct.
3. Take action against those who break the rules to show that you view the issue seriously. However, consider each case individually. The employee’s reasons for recording could affect the appropriate response. 
4. Have a simple mechanism in place to make sure employees get consent from colleagues before recording them. For impractical situations (like social events), make exceptions in your policy. 
5. Include a ban on sharing recordings on social media in your social media policy.

By following these steps, employers can better manage the risks associated with covert recordings and maintain a trustworthy and secure workplace environment.

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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