Covert Recording of meetings and conversations in the workplace – do you need a policy?

Tue May 22nd 2018

Yes you do …with mobile phones easily accessible in the workplace, our experience is that more conversations are being recorded covertly by employees, i.e. without the other person’s knowledge or permission, be that employer or colleague.

Covert recordings of employees by employers will be difficult to justify in anything but exceptional circumstances.On the other hand, case law suggests that employees recording conversations with their employers, will more than likely be admissible if a case proceeds to the ERA.

Despite this, sometimes the good faith of the employee making the recording is called into question.This is especially so, where the employer expressly asked for the conversation not to be recorded, where it is evident that the conversation was intended to be confidential, or where the employee looked to be trying to set up or ‘entrap’ their employer by way of the recording.

Covert recording comes up often in determinations in the ERA and ultimately, each case is taken on its individual merits.

Our experience is that it is best to have a policy highlighting the good faith obligations of both parties in your workplace in either your employment agreement or policy handbook.

The policy could include, but not be limited to, the following:

• The policy should emphasise the privacy rights of employees and prohibit covert recordings in the workplace.
• Covert recordings may amount to serious misconduct.
• If either party wishes to record a meeting or conversation, they will expressly ask the other if they agree prior to recording.
• If this is agreed to, the other party will be provided with a copy of the recording.
• If a transcript is made it will be provided to the other party.

To protect yourself, especially in situations where there is potential for conflict, reiterate that you don’t agree to the meeting being recorded.Always choose your words carefully and remember any meeting can be adjourned.To avoid disputes about whether you consented to a meeting being recorded or not, we suggest that you note this down in the meeting minutes.

If you have withdrawn consent to your employee recording and it transpires that they have gone ahead and recorded anyway, you have the option of commencing a disciplinary process with that employee on the basis that the employee may have breached the company’s policy and/or may have breached their good faith obligations.

Such a policy enforced consistently, would act as a deterrent for employees, and would provide employers with a clear ability to take disciplinary action against employees if such recordings occur.

If you would like us to customise a policy for you, please call us.