Covert Recording – tips for Employers

However, if done covertly, this can cause big headaches for employers, particularly if those recordings end up on Facebook or other social media sites, leading to reputation damage, confidentiality, and data protection issues.

Employers naturally want to have control, but they also need to understand that sometimes employees might feel justified in recording, especially where they are concerned about workplace behaviour and want to gather evidence.

These are some key points to consider:

• If an employee secretly records a colleague or manager, this may breach the implied duty of trust and confidence. This might be considered gross misconduct, potentially leading to a fair dismissal depending on all the surrounding circumstances, such as the reason the recording was made, the business' policy on workplace recordings, and how well this is communicated.
• Posting covert recordings on social media is obvious misconduct. It can damage the Company’s reputation and cause disputes. Consequently, a clear prohibition on sharing workplace recordings on social media should be included in your social media policy.
• Employees recorded without their knowledge may consider the employer has failed to protect them, risking constructive dismissal claims if they resign due to this breach of trust.

Accordingly, we have shred below our top tips for employers:

• Implement and communicate a clear policy banning covert recordings in the workplace.
• Explain that making covert recordings (and sharing them or making them public) is potential gross misconduct.
• Take disciplinary action against those who break the rules, however, consider each case individually. The employee may have reasons for recording that could affect the appropriate response.
• Have a simple process in place so that employees get consent from colleagues before recording them. For impractical situations (like social events), make exceptions in your policy.
• Include a ban on sharing recordings on social media in your social media policy.

Implementing these steps will help employers manage the risks associated with covert recordings and help to maintain a trustworthy and secure workplace. Finally, please note these tips are not legal advice, but we would be pleased to assist you with any issues surrounding cover recordings or drafting social media and other policies.