The phenomenon of employees secretly recording their superiors and colleagues has become widespread. The reasons are varied – the employees may be:

  • involved in a crisis;
  • preparing for a lawsuit; or
  • recording just in case, with no immediate reason.

Often employees act upon legal counsel that the recording of a conversation in which they participate does not constitute a criminal offence, and that the contents of the recording will be valid as evidence if the dispute ends up in court.

However, the lawfulness of hidden recordings and their validity as evidence do not reflect the whole picture, which includes aspects of inappropriate conduct on the part of the employees that may amount to dishonesty and breach of faith.

When a court restricts its judicial examination to the criminal aspect of the hidden recording and the validity of the hidden recording as evidence, it may convey the impression that secret recordings are not reprehensible. However, this is not the case and secret recordings have the same deleterious effect in the workplace as other inappropriate conduct.

In two important recent rulings the Supreme Court(1) and the Regional Labour Court(2) made unequivocal statements that defined secret recordings by employees as a breach of trust and discipline that could justify disciplinary measures up to dismissal and also affect the remedies to which the employee who made the hidden recording could otherwise have been entitled.

Although both cases involved employees in the civil service, the judicial statements are equally valid with respect to employees in the private sector.

Hopefully, the rulings will result in a change in conduct and minimise, if not end, the phenomenon of routine secret recordings by employees of their superiors and colleagues.

However, there are extreme cases in which employees may be driven to make secret recordings, such as cases of harassment or corruption in the workplace. The line between prohibited and permissible conduct in this respect has not yet been delineated and awaits further case law development.

In the meantime, employees should be aware that, apart from in extreme cases, hidden recordings are unacceptable and incompatible with continued employment relations.

For further information on this topic please contact Shoshana Gavish at S Horowitz & Co by telephone (+972 3 567 0700) or email (shoshanag@s-horowitz.co.il). The S Horowitz & Co website can be accessed at www.s-horowitz.com.

Endnotes

(1) Request for Permission to Appeal 4550/15, Haya Ofra Shmueli vs State of Israel (July 6 2015).

(2) Labour Dispute (B-S) 11761-03-15, Livnat Hazan vs Mizpe Ramon Local Council (July 5 2015).

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