Smartphones have revolutionised modern communication and allow users to document their surroundings with astounding ease and accuracy. But while these utilities are a gift to most, the ability of an employee to create covert recordings on a smartphone poses a particular threat to employers.
In Punjab National Bank (International) Ltd v Gosain, Ms Gosain not only recorded an investigatory meeting without informing her employer, she continued to record the private conversation between her employer’s representatives once she had left the room.
The recordings confirmed that key issues which Ms Gosain had raised were deliberately being ignored by the employer and, worse still, the bank’s manager went on to make a series of degrading and sexist comments about Ms Gosain which were all picked up by the recording. The tribunal held that the recording was admissible as evidence as it was relevant to the issues of the case. The bank appealed to the Employment Appeal Tribunal (EAT), but that appeal was dismissed.
The admissibility of covert evidence is not always clear-cut. What if the employee has recorded a conversation between an employer and their legal adviser? That is what happened in Fleming v East of England Ambulance Service NHS Trust. Mr Fleming covertly recorded his disciplinary hearing, which included a private conversation between the trust’s solicitor and the hearing panel. Mr Fleming then sought to rely on the recording as evidence in his employment tribunal case for unfair dismissal and disability discrimination.
At first instance, the trust successfully argued that the recording should not be admissible as it was covered by ‘legal professional privilege’ – confidential communications between a client and their legal advisor for the purpose of giving or obtaining legal advice. The EAT considered the public interest arguments which were, on the one hand, hearing the relevant evidence within the proceedings and, on the other, the preservation of discussions held in private. It was concluded on appeal that the material within the recording which was not subject to legal professional privilege should be admissible in the proceedings.
What can employers do to prevent recordings?
The practical answer is very little, so the remedy lies in active management of the issue. Managers and HR advisers should remain vigilant and ensure they maintain discretion and a professional demeanour at all times, even in routine managerial interactions with staff. This is all the more important in the context of disciplinary or grievance proceedings and especially once the formal part of any meeting has concluded.
It is important to remember that while your notetaker may have put their pen down, this does not mean the employee has stopped recording. Private discussions between management should not be held in the same meeting room, as there is a chance that the employee has stepped out but left their phone on record.
Recording a conversation will probably constitute the collection of ‘personal data’ for the purposes of the General Data Protection Regulation 2018 (GDPR). While for employers there would be potentially severe penalties for such a breach, including substantial fines, it remains to be seen what, if any, penalty an individual would face in the form of action by the Information Commissioner or private proceedings.
In addition, the subject of the recording may claim that their right to a private life under the Human Rights Act has been infringed, although this would similarly require a claim against the individual, which has its drawbacks.
A covert recording could trigger disciplinary action against the employee and it is worth considering whether the employee has breached the implied term of trust and confidence or, in extreme cases, even committed an act of gross misconduct. Employers would be wise to consider including a clause in their policies to warn employees that the use of covert recordings in the workplace may be treated as a disciplinary matter.
Despite possible GDPR and human rights implications, employment tribunals have a wide discretion as to whether to admit covert recordings as evidence. What recent case law teaches us is that they will often permit this where the recordings are not privileged and include evidence that is potentially relevant to the case. Employers must acknowledge this exposure and conduct their activities accordingly.
Shilpen Savani and Sacha Sokhi are employment law experts and members of IR Global