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Is Covert Recording Illegal, Justified or Unethical?

22 February 2024

In what appears to be a growing trend, employees in the US have been recording themselves being laid-off over video calls. These videos are then posted on social media platforms, drawing attention to the poor treatment of staff and the badly handled situations in large and well-known organisations.

 

An American Web Company

One of the latest companies featured in these viral videos was Cloudflare, an American web company, who were planning to dismiss multiple staff members. Having heard about what would happen in advance, Brittany Pietsch, who had worked for the company for only four months, decided to record the conversation. When Brittany joined the call, she was greeted by a member of the HR team and a Director, both of whom she had never met. The Director jumped straight into a scripted statement loosely confirming that they had decided to ‘part ways’ with her due to Brittany not meeting the company’s ‘expectations for performance’. Having been tipped off, Brittany was prepared and responded by providing evidence to dispute this. Brittany asked a number of challenging questions and queries, and neither of the individuals could give an answer or explanation during the 9-minute video.

 

Secretly recording meetings is not unheard of in the UK either, although in the past they have mainly been audio recordings. Covert recordings can significantly impact a company’s reputation, as was seen by the backlash P&O Ferries experienced when they made mass dismissals without notice via Zoom. It can negatively impact a company as an employer of choice and make the employer less attractive for recruiting or indeed retaining the best staff in the future. A fear of covert recordings being made could also change how a business will approach internal meetings. This is because videos will contain images of staff, which could be posted online, causing distress for those involved, a breach of their rights and a potential reluctance to participate in these meetings in the future.

 

Whilst it is not necessarily illegal to covertly record a meeting about, for example someone’s performance, it does fall under the remit of the Data Protection Act 2018 if a recording contains information identifying a natural person (personal data). Recording personal data without the person’s consent may amount to a breach of the legislation. Whether or not it is a breach will depend on the intention of the person who makes the recording. If, for example, they are making the recording because they have a solid and reasonable suspicion that criminal activity or serious misconduct is taking place in a business, then making the recording a breach.

 

Employers should have policies in place to prohibit employees from covertly recording and making it clear that they should respect the privacy of their work colleagues. Before starting meetings, managers should ensure that the meeting is not being recorded. If the person lies and records it anyway, that could give grounds to terminate their employment lawfully.

 

At Loch Associates Group, our Employment Law and HR experts are on hand to help ensure you have in place the correct policies in place to comply with the Data Protection Act and to avoid covert recordings in the first place. We also offer specialist advice and training to help your managers understand how best to approach terminating employment contracts, so you don’t end up in a situation like Cloudflare!

Contact us today at [email protected] or call 0203 667 5400.

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