Legal Lowdown: Covert Recording & Monitoring

Over the past few years, both employers and employees have become increasingly savvy when it comes to workplace technology. Technology is also becoming progressively more sophisticated. Not surprisingly, we have seen a marked increase in questions about secretly recorded exchanges and email monitoring in the workplace. For a deeper dive, see our Legal Lowdown: Covert Recording and Monitoring.

Can I Secretly Record Conversations with My Manager or HR?

If an employee believes they are being treated unfairly, bullied, discriminated against or are about to lose their job, it is not unusual to gather evidence early on. Increasingly, such evidence includes secretly recorded exchanges or meetings with colleagues.

However, from the employer’s perspective, recording individuals without their permission is likely to represent a serious breach of trust and confidence in the employment relationship. It may also contravene the Data Protection Act 2018 (DPA) and potentially be a criminal offence under Section 170 of the DPA, unless the recorder’s legitimate interests outweigh those of the individuals being recorded.

Covert recordings can also violate the right to privacy under Article 8 of the European Convention on Human Rights (ECHR), which protects private life, home and correspondence. Even if a private recording is not shared publicly, the mere intrusion constitutes a breach of privacy.

Generally, secret recordings are not advisable. Instead, consider seeking permission to record or ensuring someone present can take detailed notes.

Admissibility of Covert Recordings in Tribunal Claims

When covert recordings are relevant to a claim, employment tribunals will generally admit them as evidence. Employers should therefore remain alert to potential costs and reputational damage arising from such recordings.

Covert recording is an evolving area of case law. In the meantime, assume that recordings may be admissible but that tribunals will weigh the recorder’s motives and character when determining the evidence’s weight.

Can Employers Read Employees’ Emails Without Permission?

If an employer has a legitimate reason to read emails sent and stored on a work account, this is generally permitted—even without employee consent. The same applies to personal emails accessed via work equipment.

However, accessing or searching employee emails without consent carries data protection, privacy and interception implications. For instance, it may be unlawful to open an unopened email without consent.

Tip: Maintain clear, well-drafted email and monitoring policies and regularly remind employees of these policies to manage improper email usage and covert recording.

Key Takeaways

• Seek permission before recording conversations.
• Assume covert recordings may be admissible in tribunals.
• Ensure robust email monitoring policies are in place.
• Explore more on covert recording and monitoring.

Article by Danielle Crawford, Associate Solicitor at Winckworth Sherwood