Recording in the workplace can be a somewhat controversial subject. Whilst no employer wants to feel like they have a relationship with their employees built on mistrust, there are often valid reasons for it that are becoming a standard practice in some workplaces, including the health and safety of staff.
Technology can now be deployed for monitoring in a variety of different ways. Digital monitoring includes techniques such as location tracking, CCTV, facial recognition, social media monitoring, and keyboard stroke tracking. More recently, a small number of businesses have even considered microchipping their employees.
Each method tends to be used for its own specific reason, some of which are legitimate means of ensuring employee safety, and preventing theft.
Contact the Employment Law experts at Croner and get advice on your documentation and policies to ensure compliance with UK law. Call today on 0808 501 6651.
What are you legally allowed to do?
The Information Commissioner’s Office has clear guidelines on what can and can’t be done with workplace monitoring. The key is communication. If you have monitoring arrangements in place, inform your employees about them.
If you're keeping records, staff should be informed exactly what data is being taken and how long it will be kept. Any data kept should also be in line with the GDPR. And The Investigatory Powers Act 2016 and Regulations 2018 governs the law around electronic communication and interception. Article 8 of the European Convention on Human Rights states that there is a right to respect family life.
If CCTV monitoring is required in your business, ensure that monitoring is only used for the purpose it was carried out for. For example, if you own a shop, and install a CCTV camera outside the doors to prevent theft, you cannot legally use that footage for recording the entry and exit of workers from the shop.
With regards to social media, employers can include social media monitoring as part of an IT policy as a contractual right to monitor what employees get up to on social media during working hours. However, some employers will snoop out of work hours also.
While legally acceptable, such activity can have a profoundly negative effect on the morale of employees, and so it is advisable to refrain from doing so unless absolutely necessary.
Be mindful that there is a duty of trust and confidence implied in an employee's contract and monitoring, depending on the circumstances, may be in breach of this.
What is the best approach?
Restricting access to social media during working hours can ensure employees don’t use social media and therefore solve the problem. However, this can be seen as a total lack of trust by the employer, and cause a drop in morale.
Only restrict if necessary to do so, and be wary that some employees may attempt to access social media via their phones or by other means, leading to further distraction. Having a well-established monitoring policy, and making sure your employees have access to it, will ensure clarity.
Trusting your employees to get on with their work and not deploying some of the more extreme monitoring systems (such as keyboard tracking and facial recognition software), will have a positive impact. Making sure you are approachable is also a big plus, as it allows employees to come to you and communicate openly if they feel monitoring is being abused.
It can be frustrating, when you are sure work time is being wasted by an employee, to be bogged down by surveillance guidelines. However, having a well-defined policy in place should prevent abuse, and if it doesn’t, then it will help you back up any disciplinary action you take against the offending employee.
Is it legal to record conversations at work??
Recording conversations at work is a legal grey area that the Employment Appeals Tribunal (EAT) is continuing to work hard to clarify when it encounters exceptional cases.
For expert advice or immediate support regarding recording conversations at work, call our employment law experts on 0808 501 6651.
When one of your employees makes a covert recording of a conversation at work in the UK, they’re probably going against company policy and could be liable for a misconduct offence. And if they’re recording colleagues at work, they’re likely to destroy any working relationship they had with those colleagues.
However, this doesn’t mean a tribunal will automatically dismiss the evidence if you present covert recordings at an employment tribunal.
While there’s no specific covert recordings employment laws in the UK, its use in a court of law depends on a variety of circumstances – including how it was obtained and who’s featured in it. In almost all cases, the employee who recorded the meeting or hearing must have been present.
Private recordings, such as that of a disciplinary panel, without the employee in the room, are unlikely to be admissible. The most notable exception is Punjab National Bank v Gosain.
Certain factors will determine whether it becomes evidence, such as:
- The recording’s relevance to the tribunal.
- Whether there’s also a transcript.
- Discrimination within the content.
Is it legal to record conversations in the workplace in the UK?
As an employer, if you want to record conversations at work, you should seek to do so by acquiring the consent of the person you’re going to have a conversation with (for example, one or more of your staff).
And remember, with GDPR’s vigilant rules on data, you need to:
- Inform anyone you record about the specific purpose of the recording.
- Get their specific consent, such as through a fill-out form, which they must sign.
An employee must give their consent freely. And you should go through this consent process for each conversation you record—never presume that because someone consented to you recording conversation A, they’ll automatically consent to the recording of conversations B, C, and so on in the future.
Your personal business preference might be to make recordings of meetings at work, to later convert these into full transcripts—this can be a useful tactic for having a fluid discussion without someone having to focus on writing minutes or taking notes.
If this is your preference, you should state in your relevant policies that you want to record conversations in a covert way and will look to acquire the consent of attending persons.
Some instances where you might want to record a conversation (overtly, remember) include:
- Disciplinary proceedings.
- Grievance proceedings.
- Performance review meetings.
- Board meetings.
- Management meetings.
- Appraisals
Can employers record conversations at work when the employee doesn’t consent?
We advise that where possible, if someone doesn’t consent to you recording meetings at work, you accept this and do not record the meeting(s).
What about covert recording at work? Can employers do those?
You should be transparent and honest about recording conversations. Make it clear in your company documentation when you might want to record a conversation. And seek consent.
Otherwise, assigning someone to take notes during a conversation is another way of ensuring that what all parties say has some form of recorded evidence.
Both parties can agree on written notes after the meeting—they could sign to declare they consider the notes are correct. One or both parties might want to make amendments to the notes—this should go on until both parties agree.
An employment tribunal is likely to treat an employer in a more judicially harsh way than they would an employee.
To start with, the tribunal will likely deem any covert recordings belonging to an employer to be inadmissible during the tribunal case—this means they won’t count as evidence and normally won’t even reach the panel.
If an employee finds out that you recorded a conversation without their consent, they might be able to make a claim based on the breach of their privacy under the Human Rights Act 1998.
Although in some circumstances, a person’s position will waive their right to privacy because they’re acting in a public role.
Be clear with your stance on recording.
The UK law on recording conversations evolves depending on the facts presented at each case, with judges having to remain vigilant to advances in technology, as well as how relevant or not a piece of covertly recorded evidence might be in a given case.
We recommend that you train your managers and HR staff to expect that your employees are covertly recording conversations in the workplace, and that a tribunal could allow those recordings as evidence at a later date.
Make sure your stance on any conversation recording is clear in your policies—this goes for audio and visual recordings. Your best bet is to disallow recording conversations at work unless all parties consent to it. Before a meeting begins, remind all participants of your policy.
If you agreed either at the start of the meeting, or before it, that no one would record any part of the meeting, you should ask all members to confirm that they’re not doing so. If they later try to use a recording following this lie, they could be guilty of a separate misconduct act. And while a tribunal could still listen to what they record, their credibility will be at risk in the eyes of the tribunal.
As always, make sure all staff have copies of the company handbook, which is where you should keep your policies. Whenever you update a policy, email round the new version of the handbook.
Talk to an Expert
For more information about recordings in the workplace, speak to a Croner employment law expert.
With over 80 years’ experience in helping businesses with all things HR, Employment Law and Health and Safety related we can advise you on best practice when it comes to workplace monitoring and surveillance.
Call Croner today on 0808 501 6651.
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