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“Off The Record?” Covert Recordings In Employment Disputes – Employee Rights/ Labour Relations



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We have seen a number of cases recently in Jersey and Guernsey
where issues relating to covert recordings have arisen.
Historically, employers have been reluctant to record disciplinary
proceedings, and this does occasionally lead to employees taking
matters into their own hands and making their own recordings,
sometimes without the knowledge of all involved. This risk is
aggravated where hearings are conducted remotely as employers
cannot see what is happening off-screen.

In one recent matter that we acted in, the employee challenged
the employer’s notes of a grievance hearing and attempted to
add to the notes. When the employer refused, the employee produced
a covert recording to show that their additions were accurate and
the employer’s notes were clearly incorrect and unfavourable
to the employee. This was potentially problematic for the employer,
both in terms of their relationship and discussions with the
employee but also in terms of undermining their credibility before
a tribunal in any potential claim.

This led to a question over whether an employee can use a
recording made in these circumstances. In this case, the answer was
a clear yes.

The employee was recording the grievance hearing itself, and
there can have been no expectation that the hearing was private or
confidential so far as the employee was concerned. There was also
no ulterior motive in making the recording or any sense that the
employee had used the recording to try and force a favourable
outcome or obtain favourable responses to questions. The employee
here wanted an accurate record of the hearing. A tribunal will
usually allow recordings made in these circumstances as the best
evidence of what was said.

A tribunal is likely to take a different approach where
employees try to use a covert recording of the deliberations or
decision-making processes, where they would not usually be present.
In those circumstances, there is an expectation that the
deliberation process is private and as a result the employee cannot
normally use any recordings of the private discussions. The main
exception to this is where the recording shows that the decision
itself was discriminatory, as the tribunals in Jersey and Guernsey
rightly deprecate discrimination.

So what can employers do to protect themselves from the use of
covert recordings? The first step is to set out expectations before
a hearing takes place both in disciplinary and grievance
procedures, and in any invitation letter, making it clear that a
recording cannot be made and that if a recording is made this will
be an act of misconduct and could of itself lead to disciplinary
proceedings. Employers may also want to consider whether to list
making a covert recording as a specific act of gross
misconduct.

The warning will not automatically prevent the recording from
being used in a tribunal hearing – as discussed above, a
tribunal is likely to allow a recording of the hearing as the best
evidence of what was said. However, if an employee is expressly
told that they cannot record a hearing but still goes on to make
one, they risk being subject to further disciplinary proceedings.
This may act as a disincentive to the employee to record the
hearing in the first place. It may also allow the employer to
fairly dismiss the employee or to reduce the value of any
damages.

If a covert recording is made of the decision-making process, or
otherwise contains confidential information or business secrets,
there are a number of other options depending on the nature of the
discussions and what the proposed recording is going to be used
for. The most common step is to seek an order for delivery up of
confidential information.

Less commonly, employers can seek an interim injunction known as
an “interim non-disclosure order,” which is what
happened in the recent English case of Clearcourse
Partnership v Jethwa
 [2022] EWHC 1199 (QB), which
involved a covert recording of confidential commercial discussions
during the course of an acquisition. This was an unusual case,
involving the sale of a business. Mr Jethwa inadvertently overheard
and then went on to keep a record of the CCTV images of the other
side’s private discussions about their negotiation tactics,
and their view of him and his future after the acquisition. He then
threatened to share this on social media when the relationship
broke down.

The claimant in that case brought a number of different claims
and obtained an interim non-disclosure order to prevent the
recording from being used or shared on social media.

The key claims that supported this injunction were:

  • Breach of Confidence: the discussions were confidential, the
    individual was aware or ought to have been aware that they were
    confidential and there was the unauthorised use of or threat of use
    of this information.

  • Misuse of private information: a conversation held behind
    closed doors gave rise to a reasonable expectation of privacy and
    there was no general interest in overriding this expectation when
    considering the rights of both parties.

  • Data Protection: the recording contained personal data, which
    was retained without consent or a legitimate interest. The general
    CCTV warning was not sufficient here where the individual was
    retaining the recording.

Whilst Clearwater is an extreme case, it is a reminder for
employers that they do have a number of options available to them
to protect their confidential and private information. As well as
an order requiring the delivery up of documents, employers can take
steps to prevent their information from being used or shared more
widely through an interim non-disclosure order.

Where an employer suspects that a covert recording has been
made, they should take early steps to consider the legal risks and
consider what steps they may want to take to preserve their
confidential information and the misuse of it, and to what extent
they can limit or restrict the use of that recording in any
proceedings.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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