Covert workplace recordings not gross misconduct

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Case law has shown judges don't view employees' covert recordings as misconduct. But fostering 'conversational intelligence' in the workplace will help prevent such incidents arising in the first place

When are work conversations private?... Well, not often now that every employee has a recording device in their pocket in the form of a smartphone. And cases in employment tribunals are demonstrating that recordings made by staff are admissible evidence – despite organisations' efforts to claim they might be gross misconduct.

In a recent tribunal case against Phoenix House an employee claimed they were unfairly dismissed after falling out with their manager. The tribunal upheld the decision but, during the hearing, the charity discovered the employee had recorded a conversation covertly in an attempt to provide evidence of how they were being treated. Phoenix House appealed, saying if it had known the recording had been made this would have been grounds for dismissal in itself. But the judge found the recording was relevant to the case and so entirely admissible.

In another more complicated case, a disciplinary hearing at the East of England Ambulance Service NHS Trust was recorded by an employee. This included a ‘private’ conversation between the NHS Trust’s solicitor and the panel. Even in this case the tribunal decided that the evidence was relevant, in the public interest and should be admissible, and was not covered by legal professional privilege.

As the judge in the Phoenix House case said, it’s a difficult area. There are a range of reasons an employee might use their phone in this way, from a “highly manipulative employee seeking to entrap the employer, to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”, they said. “It 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.”

As a rule it’s rare that an employer will be able to prove that making a recording can be classed as gross misconduct. It’s worth being clear in procedures around disciplinary hearings that making recordings is prohibited, but the best response, rather than fear of recordings, is to think about the quality of conversational skills among managers so that any recordings are not a threat.

All managers need to have the ability to have grown-up conversations, no matter what the situation. It's their job to have listening skills, situational awareness, empathy – essentially what’s become known as 'conversational intelligence' (CI). The result of this confidence in CI for organisations will be a quite different attitude to covert recordings; as consistent evidence of good management practice and a good organisational culture.

CI is not just about avoiding conflict either. Challenging conversations are good for business – for encouraging new perspectives and innovation, as a basis for a better working environment, better self-awareness, more positivity and a sense of motivation. Managers need to decide when a conversation is needed, and shouldn’t be bounced into it by circumstances or in an emotional way. They should plan what they want to accomplish and set out a clear purpose. If a conversation feels risky to a manager, it will be feeling risky to the other participant.

People too often believe their experience means they already have the answers. Instead they need to be able to ask exploratory questions and show a meaningful interest in what an employee thinks, believes, fears and wants. Not only is curiosity a strong relationship-building tool, it also gives you more information that will help with the problem-solving. Really listen to their side of the story and let them know they have been heard and understood. A manager who shares their assumptions and versions of events with others will be more clearly understood, and mistakes or misunderstandings will be cleared up before they take hold and become ‘facts’. People will be more motivated to commit to a manager who is open, honest and trustworthy in this way.

Workplace pressures, new routines and use of technology are all acting against the everyday flow of conversations. Businesses want action and efficiency without debate. But conversations only improve through being a natural and regular part of working lives, not when they only occur when someone is summoned to a meeting or given the space to talk only within a weekly team slot. Frequent, open and trusting conversations need to be encouraged, supported and part of the culture.

Arran Heal is managing director of CMP

Further reading

Legal lowdown: Covert recording and monitoring

The difficulties of speaking truth to power

Creativity flourishes when managers listen

Don't ignore the power of relationships at work

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