Technology has impacted our privacy in a myriad of ways. One crafty use of technology that we see more and more in workplace disputes, is employee made audio recordings. Employees are turning on their voice memo apps before they go into important meetings and covertly recording their conversations. While undeniably an audio recording is great evidence of what was said, the practice raises concerns and questions.
Is this a crime?
Recording a conversation that you are a part of is not a crime. This is the case even if the other party to the conversation has no idea they are being recorded.
Secretly recording a conversation that you are not a part of is a crime. So bugging the office washroom or the CEO’s office is (obviously) not a good idea.
Is it a violation of workplace policy?
Even if it’s not a crime, recording your employee, employer or a co-worker without their knowledge erodes trust and infringes on their privacy. While employers may not have a specific line in a policy document that says “It is prohibited to secretly record your conversations with others” this doesn’t mean it may not attract discipline and may not breach privacy and confidentiality obligations generally.
When the recording comes out
In a litigation situation, such as a lawsuit, grievance arbitration, or a human rights application, each side must exchange any material they have that is relevant. Even if the recording party decides that the recording is not going to help their case, it must be produced. Generally, the recording would have to be produced even if the employee did not plan to use the recording in the litigation.
In the labour relations context, some arbitrators have refused to admit recordings, even where the union wanted to use them because of their damaging effect on the relationship between the union and the employer.
Those in non-unionized workplaces should also be mindful of how the fact of a secret recording will make the recording party look. Even where relations between the parties have already soured, the fact of a secret recording often won’t do much to endear the recording party to the judge. See for example the 2017 case of Hart v. Parrish & Heimbecker, Limited, where the plaintiff’s recordings backfired. The judge found that his conduct in surreptitiously recording meetings between him and his managers violated his confidentiality and privacy obligations. The fact of these recordings strengthened the employer dismissal for cause case.
What should employers do?
With the ubiquity of smartphones, and the ease with which anyone can make a high quality recording, it’s not a bad idea to have a policy in place that clearly prohibits recording in the workplace without the consent of all involved in the conversation. Similarly, employers should not record conversations with employees without first obtaining employee consent.