Introduction to Covert Recordings in the Workplace
There are a number of moral and legal questions, that remain unresolved, regarding the use of covert recordings in the workplace.
In general, an employer will be precluded from covertly recording employees, without their consent, in any form. However, there are numerous examples of employees recording conversations with their employers, managers, or other colleagues, in anticipation of a grievance or dispute.
Despite the objections by employers, who cite privacy and data protection laws in support of their proposition that such recordings should not be admitted for consideration in Workplace Relations Commission (WRC) hearings, the WRC has demonstrated a willingness to regard covert recordings as admissible, under certain circumstances.
Where there is a breakdown in trust and confidence between the parties, it is more likely that the WRC will permit the inclusion of a covert recording. However, it appears that where the employer provides a comprehensive redress process, and in the absence of any allegations of wrongdoing, the WRC will not permit the admissibility of covert recordings into evidence.
The theme of trust and confidence comes up time and again, in any deliberations as to whether the inclusion of a covert recording will be permitted.
Case Law – Covert Audio Recordings
A seminal case is that of Laurentiu Eugen Iacob v The Central Hotel (DEC-E2010-147), as it addresses the issue of a covert recording by an employee and the typical objections pertaining to data protection and privacy, that are routinely cited by employers.
In this case the Complainant asserted that he was discriminated by the Respondent on the grounds of his race contrary to Section 2(h) and Section 8 of the Employment Equality Acts 1998 – 2008, in terms of his conditions of employment and discriminatory treatment. He also claimed that he was subjected to harassment contrary to Section 14(a) of the Employment Equality Acts. The Complainant had recorded a conversation between himself and a manager which had taken place a number of weeks prior to his termination of employment. The Complainant claimed that the manager was aggressive in his manner and used sexually derogatory language, referring to him in unsavoury terms. The Complainant also claimed that, during this conversation, he was denigrated on the basis of race with references being made to translation.
The Respondent objected to this audio recording being admitted into evidence on the basis that it had been made without the knowledge or the consent of the manager. The Respondent submitted that the recording of this conversation amounted to a breach of the manager’s right to privacy under both the constitution in the European convention on human rights and that it was also a breach of the Data Protection Act, 1988.
Having carefully considered the submission of both parties regarding the admissibility of the audio recording, the WRC found that it was not precluded from admitting it into evidence. The WRC went on to state that it had considered the content of this audio recording as not inferring harassment on the grounds of the Complainant’s Roman nationality.
Admittance of Covert Audio Recordings
Overall, the WRC has demonstrated a willingness to accept covert audio recordings into evidence. Where there is a break down in trust and confidence between the parties, it is more likely that the WRC will permit the inclusion of a covert recording.
In A Complainant v A Sports Centre (ADJ-00012455), the WRC noted that the Complainant made covert recordings of conversations he had with some members of staff of the Respondent and, while it was deemed unacceptable, the WRC did take on board his bona fides, wherein he stated he was trying to protect himself given the break down in relations with his manager and given a number of unsavoury events which had transpired. The Complainant stated that the covert recordings of meetings were done to protect himself as to what was agreed to at meetings, differ from time to time. The Complainant asserted that, having to revert to covert recordings demonstrated the lack of trust he had in his working relationship and why he sought to have the matter addressed through the grievance procedures of the Workplace Relations Commission.
In Michael Caplis v Transeb Ireland Limited (ADJ-00012790), it was the employer who admitted into evidence the audio recordings made by a private investigator on foot of a disciplinary matter.
In A Senior Contracts Administrator v An Aircraft Leasing Company (ADJ-00020828), the Complainant sought to admit an audio recording during which a line manager claimed that the Complainant would not be promoted, not necessarily on the grounds of her gender, but because of her family status, in that she had several children. The audio recording was supplemented by a transcript of the conversation. Interestingly, in this case, it was not the Complainant who had made the recording, but a colleague. The Respondent did not object to the inclusion of the audio recording and the recording was admitted into evidence before the WRC.
In Slaughter Line Operative / Butcher v Meat Processing Company (ADJ-00007300), the WRC was provided with CCTV footage by the employer and two audio recordings by the employee at the hearing. The WRC accepted both into evidence. The CCTV footage was of limited assistance to either party’s case. The employer’s solicitor heard the audio recordings before they were played to the adjudicator and strenuously objected to the admissibility of the audio recordings which he asserted were made without the knowledge or consent of a company director who was apparently unaware that the Complainant was recording their conversations. Despite these objections, the WRC admitted both audio recordings into evidence.
Non-admittance of Covert Audio Recordings
It appears that, where the employer provides a comprehensive redress process, and in the absence of any allegations of wrongdoing, the WRC will not permit the admissibility of covert recordings into evidence.
In Dympna Boyce v Ras Medical Limited Auralia (ADJ-00011059), it was the employer who took a covert recording of the employee. The employee was completely unaware that she had been recorded. The WRC found that the covert recording without the knowledge of the employee was quite telling and was an unfair and underhand treatment by the employer in relation to the complaints the employee had raised internally.
In Euro Car Parts Ireland Limited V A Worker (ADJ-00019389), it was held that the failure of an employer to admit a covert recording into a grievance or disciplinary hearing, would not unfairly prejudice the findings of such a hearing. The WRC held that, in relation to the content of the subsequent report, if the employee was unhappy with the findings, there was an appeal process which the employee could have availed of.
In Josh Braybrooke v Department of Employment Affairs and Social Protection (ADJ-00021765), the Complainant sought to rely on covert audio recordings as he stated that “the managers in the office did not keep or provide me with notes of the meetings had and had a habit of, at a later date, citing events or discussions that did not occur”. The Respondent objected to the inclusion of the transcripts of covert recordings made by him of conversations with his employers. It submitted that the use of covert recordings as evidence by the Complainant is underhand and ought to be excluded. Neither of the persons who are identifiable on the transcript gave their permission to the recording and it was claimed that this amounted to an interference in their human rights and freedoms. The Respondent also went on to state that these recordings were a breach of data protection law as the Complainant, in recording, storing and now processing the data, was acting as a data controller and had unlawfully processed information in relation to data subjects who were clearly identifiable.
In A Customer Service Operator v A Car Hire Company (ADJ-00019536), the Complainant sought to rely on covert recordings which were taken after the termination of employment, during informal mediation talks between the parties. The WRC noted that it was troubled by one party recording a conversation without consent. While it appreciated that it is not expressly prohibited in any statute, it did nothing for the supposed mutual trust and confidence that lies at the heart of an employment relationship. It was the opinion of the WRC that the covert recording in the workplace is a form of entrapment and has no place in a modern working environment. Interestingly, the WRC went on the note that the Respondent procedures had allowed for the representative accompany the employee to a grievance. This is further embellished in Statutory Instrument 146 of 2000, the Code of Practice on Grievances. The WRC further noted that the Respondents had a comprehensive policy on data protection and associated consent. The Complainant, in this instance, did not advance any reason why he chose to address his post-work grievances alone and take a covert recording. The WRC had noted that the recording took place four weeks after the employment had terminated and decided to admit it from consideration on that basis.
In a A Manager v A fuel Company (ADJ-00018157), the Respondent submitted a very comprehensive and sequential record of the Respondent handling of a workplace dispute which was evidenced by a number of witnesses. There was a preliminary issue as to whether it was permissible for the Complainant to enter her taped recordings and transcript to the record with the WRC noting that the relevant meetings were taped without the permission of the participants who were aware that they were being taped. The WRC noted that an employment relationship, like so many other relationships, is based on trust and confidence and covert taping undermines that process. It therefore made the decision not to accept this covert recording as evidence on that basis. The WRC went on to explain that it would take evidence from the participants at the meetings, all of whom were present at the adjudication hearing and permit cross examination.
