As smartphones have become ubiquitous and their recording capabilities have become more sophisticated, the likelihood is that most employers will face being recorded by their staff – whether they know about it or not. At the same time, the risks for employer and employee of breaching data protection requirements have increased significantly, making covert recordings in the workplace a legal minefield. How should employers navigate it?
First, it's worth remembering just why covert recordings are so toxic. For most employers, the key concern is not the fear of bad employment practices being exposed, but the corrosive effect that covert recordings can have on workplace relations – and the risk that confidential information will find its way into the wrong hands. A fear that every word is being recorded could certainly inhibit frank workplace discussions and make resolving issues more difficult. But there are a number of other legal and reputational risks.
In some circumstances, covertly recording colleagues could amount to harassment or victimisation under the Equality Act – and unless the employer had taken all reasonable steps to prevent it happening, the employer would be liable for its employee's actions. It could also potentially be harassment under the Protection from Harassment Act 1997, in which case the 'reasonable steps' defence would not be available. And making and distributing covert recordings could amount to criminal offences under the Data Protection Act 2018 or under new laws designed to prohibit 'upskirting' photographs (depending what was being recorded).
You might think the simplest solution is simply to state that any such recordings are prohibited and treat this as gross misconduct. Certainly it's sensible to provide for this in the Company's disciplinary policy, and there will be some cases where dismissal is clearly the appropriate sanction (e.g. recording colleagues in the toilets or changing rooms). But a written policy is not necessarily the last word on the matter. A recent case emphasised that making a covert recording won't always justify dismissal: it depends on what is recorded and why. Dismissing an employee who produces a recording as evidence that notes of a disciplinary meeting were inaccurate could potentially be unfair, particularly if the employee had reason to believe that adequate notes would not be made.
There would also be the risk of victimisation claims if an employee who records evidence of harassment or discrimination were to be dismissed. It is often very difficult to draw a clear line between unacceptable methods of collecting evidence and the allegation of discrimination itself.
The message to employers is to ensure that they have clear policies on smartphone use and workplace recordings – but also to exercise careful judgement when faced with breaches by employees.