There was a time when someone minded to covertly record a colleague would have needed to hide a recording device in a pot plant or place a hidden camera in an office. Nowadays, this kind of activity is much easier as a result of advancements in digital technology. Video conference services, for instance, enable meetings and chats with colleagues wherever they are based, but these interactions can also be surreptitiously recorded or intercepted by employers, other employees or third parties. It is even possible to install hidden cameras and software that turns on the webcam or microphone in a laptop without the user knowing. For those less–techy souls, the ubiquity of “smartphones” means that virtually everyone has a user-friendly, high-quality recording device in their pocket. As more people work from home during the COVID-19 pandemic, there is greater opportunity for individuals to engage in covert recording now that all communication is online rather than in person. However, they need to think carefully before doing so. Two recent features in IDS Employment Law Brief map out the legal problems that can arise, including infringements of the laws governing data protection, privacy and confidentiality.
The first article focuses on the reasons why employers should refrain from covert recording of staff. Given the potential for significant fines by the Information Commissioner’s Office (ICO), employers need to be particularly wary of breaching data protection laws. As the ICO’s Data Protection Employment Practices Code explains, covert monitoring should only be used in exceptional circumstances for the prevention or detection of criminal activity or equivalent malpractice, and should normally be authorised by senior management. Even then, before embarking on covert monitoring, an employer needs to consider if it could collect the required information in a different way. In short, covert recording is pretty much off limits. It follows that managers, for example, should not covertly record routine meetings such as catch-ups with staff, grievance hearings and end-of-year performance reviews, and it would be advisable for employers to make clear in a workplace policy that covert recording by staff is forbidden unless authorised in advance.
In addition to a fine by the ICO, an employer could be exposed to a civil claim for damages by the subject of the covert recording. In this regard, it should be borne in mind that others (be they colleagues or trade union representatives, for example) who are also recorded in the process, may have good cause for complaint if their rights have been infringed.
The article also explains how the very act of covertly recording an employee could itself be enough to found other claims, such as an action for the tort of misuse of private information or a claim of unfair constructive dismissal. As with data protection, covert recording will be inappropriate (and often unlawful) where the necessary information can be obtained by alternative means. In deciding whether to uphold an employee’s unfair constructive dismissal claim, an employment tribunal will pay particular attention to Article 8 of the European Convention on Human Rights, weighing up the employer’s reason for covert recording against the employee’s right to privacy; staff will often have a reasonable expectation of privacy, and even more so now that large numbers of people are working at home.
The second article considers the steps that an employer may need to take when it emerges that an employee has engaged in covert recording. It may surprise some that employers are not necessarily entitled to treat this kind of behaviour as gross misconduct justifying dismissal, as the appropriate response will depend on various factors, including the employee’s reasons for making the recording and whether the employer made clear in a policy its attitude towards covert recording. Furthermore, as the EAT intimated in Phoenix House Ltd v Stockman (No 2) [2019] IRLR 960, covert recording will not amount to misconduct at all where “pressing circumstances completely justified” it. Although, somewhat frustratingly, the EAT did not elaborate on what it had in mind by “pressing circumstances”.
As well as dealing with the employee, the employer will have other concerns, in particular:
- Whether the recording reveals mistreatment or unlawful conduct that needs to be addressed.
- Whether it contains confidential information that needs to be protected.
- Whether the recording reveals a data protection or privacy breach and, if so, what action the employer should take to mitigate this.
A particular worry for employers will be whether they could be held vicariously liable for the actions of an employee who engages in covert recording, even though it has no primary liability for the breach. This kind of liability could arise in respect of an employee who commits the tort of misuse of private information or who acts in breach of confidence as a result of carrying out covert recording. Employers also need to be aware of the possibility of vicarious liability for breaches of the data protection legislation, following the Supreme Court’s decision in Various claimants v WM Morrison Supermarkets plc [2020] ICR 874. There, the court confirmed that an employer can be so liable, giving the view that it makes no difference for the purposes of the doctrine of vicarious liability if an employee’s liability arises under statute instead of common law. However, it went on to hold that, on the facts, there was an insufficiently close connection between the breach and the employee’s employment.
In the light of the decision in WM Morrison, it is feasible that an employer could be vicariously liable for data protection breaches if, for example, a line manager covertly recorded a meeting with an employee about performance issues. It is likely that a court would find that the line manager’s wrongdoing was so closely connected with the employment that it would be fair and just to hold the employer vicariously liable. Employers should therefore take steps to curb covert recording, particularly where highly sensitive and personal information is at stake.
The article concludes by examining the use of covert recordings in litigation by employees and employers, in particular, the principles governing whether or not they are admissible as evidence. This issue has generated considerable case law over the years and, as the article explains, covert recordings may be admissible even though the courts and employment tribunals generally take a “dim view” of them. Needless to say, human rights considerations can affect the decision as to whether a party can rely on this kind of evidence in legal proceedings.
