Covert recordings: does the end justify the means?
|MARTINA MURPHY, 12 King’s Bench Walk and JANE WHEELER, Keystone Law – first published in ELA Briefing|
|Covert recording is featuring increasingly in both employment and personal injury law – and the ramiﬁcations of recent decisions are yet to be fully played out. Two recent cases consider the issue from both sides in the workplace; Phoenix, featured covert recording by an employee and López considered covert surveillance by employers.|
|Generally, in employment tribunal proceedings, covert recordings of workplace discussions are likely to be admissible unless there is a legal basis for their exclusion such as privilege or public policy. Covert recordings by employees have been the subject of a number of EAT decisions. From Amwell, which appeared to set a high standard, emphasising the importance of public policy and the relevance of whether the discussions were ‘open’ or otherwise, to Fleming which re-stated the importance of the public interest in preserving privacy, however found on its particular facts, that the private deliberations were not expressly ‘private’. Further, the Grand Chamber of the ECtHR’s long-awaited decision in López, provides a useful analysis of the factors relevant to the justiﬁcation of an employer’s covert surveillance of employees.|
Phoenix: employee’s covert recording
|In deciding whether to make a reduction to the claimant’s basic award, the tribunal decided to reduce the basic and compensatory award by an additional 10% in light of the covert recording. The respondent appealed and the claimant cross-appealed. Among the issues arising, was whether the tribunal had erred in law in its approach to covert recording.|
• the purpose of the recording; this ‘may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation’;
• the extent of the employee’s blameworthiness; this ‘may vary from an employee who has speciﬁcally been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording’;
• what is recorded; this ‘may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly conﬁdential business or personal information relating to the employer or another employee is discussed’; and
• any evidence of the attitude of the employer to such conduct (HH Judge Richardson, para 78).
The EAT noted that, in its experience, it was ‘still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure;
|Covert recordings: does the end justify the means?|
|intention ‘that said, we consider that it is good employment practice for an employee or an employer to say if there is any to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so’|
|but this may soon change’ (para 78). The EAT went further and stated: ‘That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so’ (para 79). In terms of the effect on the assessment of compensation, the EAT held that the tribunal had not misapplied the test as to whether or to what extent it is just and equitable to make an award in light of subsequently discovered conduct.|
López: covert video surveillance by the employer
The Grand Chamber’s decision
The Grand Chamber set out the factors which are likely to be
|relevant when considering whether an employer may implement video surveillance measures in the workplace without being in breach of Article 8:|
• whether the employee has been notified of the possibility of the employer adopting video surveillance;
• the extent of the monitoring by the employer and the degree of intrusion into the employee’s privacy;
• whether the employer has provided legitimate justification; ‘The more intrusive the monitoring, the weightier the justification that will be required’;
• whether less intrusive monitoring was possible; • the consequences of the monitoring for the employee subjected to it; and
• whether the employee has been provided with appropriate safeguards, such as the possibility of making a complaint, especially where monitoring operations are of an intrusive nature (para 116).
The Grand Chamber distinguished between the levels of privacy an employee could reasonably expect depending on the location. Obviously, it was ‘very high’ in places which are private by nature, such as bathrooms, where heightened protection or even a complete ban is justified and that it ‘remained high in closed working areas such as offices’. However, that it was ‘manifestly lower’ in places visible or accessible to colleagues or the general public (para 125). The ‘slightest suspicion’ of wrongdoing on the part of the employee was not enough; however, a ‘reasonable suspicion that serious misconduct has been committed and the extent of the losses identified in the present case may appear to constitute weighty justification’ (para 125). The Grand Chamber pointed out that this may be particularly so where concerted action by several employees was at play.
In examining the fair trial point, the ECHR considered that the applicants had had the opportunity to contest the use of the recordings and that the courts had given extensive reasoning. The video material had not been the only evidence and the applicants had not challenged its authenticity or accuracy.
|Covert recordings: does the end justify the means?|
|‘the more intrusive the monitoring, the weightier the justification that will be required’|
|However, individuals are also at risk of action by the Information Commissioner or private proceedings, although to date, the focus has understandably been on employers’ breaches. The data protection issues were recognised by the dissenting judges in Lopez: ‘The court has decided to allow the unlimited use of covert video surveillance in the workplace without affording sufficient legal safeguards to those whose personal data will be collected and used for purposes unknown to them’ (para 4).|
In the personal injury context, in Mustard, the High Court gave a claimant permission to rely upon a covert recording of the examination by the defendant’s expert. Master Davison, in giving judgment suggested ‘that an APIL/FOIL agreed protocol is the way forward’ (para 41). It is understood that discussions are underway. It is likely that employee recording medical assessments with occupational health may similarly begin to feature in employment cases.
• covert recording raises data protection issues, creating a risk of action by the Information Commissioner or private proceedings.
• ask attendees to confirm that they are not recording at the start of a discussion (repeated after any adjournment). As noted above, any reduction in an employee’s compensation in the event of any employment tribunal proceedings is likely to be more
|significant if the employee is found to have employee’s compensation in the event of any employment tribunal proceedings is likely to be more significant if the employee is found to have|
• ask attendees to confirm that they are not recording at the start of a discussion (repeated after any adjournment). As noted above, any reduction in an employee’s compensation in the event of any employment tribunal proceedings is likely to be more significant if the employee is found to have lied about making a recording or not taken notice of the employer’s request not to record;
• consider whether the intrusion caused by covert video surveillance or recording is proportionate, balancing the breach of privacy with business needs. Consult the Data Protection codes and guidelines; and
• clearly document the reasoning for any covert surveillance or recordings.