Covert Recordings – A Warning for Employers

April 22, 2020

With many employers now in regular contact with their employees via video communication methods during the lockdown, Owen John explores potential concerns and practical steps for employers who may be faced with employee covert recordings.

Although video communications allow employers to have face-to-face contact with employees, employers should be mindful that it is becoming increasingly common for employees to make covert recordings of these video conversations. This is often done by the employees simply holding their mobile phones away from the camera, but close enough to capture the conversation.

In the case of Phoenix House Ltd v Stockman, the Employment Appeal Tribunal (EAT) had to decide whether an employee’s covert recording breached the implied term of mutual trust and confidence between the employee and the employer. The EAT noted how increasingly easier it is for employees to make recordings of meetings, but such recordings do not necessarily mean that the employee has an intention to gain a dishonest advantage. There may be several reasons why employees may feel the need to record a meeting, from being misrepresented to wanting to obtain advice from another adviser. As such, the EAT outlined the importance of considering relevant factors as to why an employee may feel the need to record a personal meeting. Such factors may include:

• a) The purpose of the recording;

• b) The blameworthiness of the employee; and

• c) What has been recorded.

Practical tips for employers

Covert recordings can prove a problem to employers. Employers should therefore consider taking some practical steps to ensure that employees are aware of the seriousness of covert recordings. These steps include:

• Updating disciplinary policies to include reference to covert recordings being an example of misconduct;

• Explaining to employees at the beginning of conversations that they shouldn’t be recording, and where appropriate, reminding them that covert recording can amount to disciplinary action;

• Reminding staff that covert recordings are increasingly common and emphasising the importance of conducting themselves appropriately to avoid any personal embarrassment and damage to the business’ reputation; and

• Warning employees that covert recordings are covered by data protection laws and would likely amount to personal data under the General Data Protection Regulation 2018.

Should you wish to discuss any of the recommendations above, please do not hesitate to get in touch: