How often have you been in a meeting and decided to press “record” on your cell-phone to avoid having to take copious notes? Have you ever secretly recorded a tough conversation with your manager in order to protect yourself? What are the chances that you have not informed your employer of these secret recordings because you have never been quite certain whether what you are doing is ethical – or even worse - a disciplinary offence?
In terms of section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 ("RICA"), as long as you are a party to a conversation you may audio or video record it without the other parties’ consent. South African courts have yet to decide whether an employer may dismiss an employee for making a covert recording and RICA has long been used to justify advice that there is no prohibition against an employer or employee secretly recording a workplace conversation. However, an Employment Tribunal in England was recently called upon to address this very question - and its answer may offer some guidance to the South African labour law landscape.
In May 2013, Ms Stockman raised a complaint with her manager regarding the director of her department. Subsequently, her manager, the director in question and a colleague met to discuss Ms Stockman’s complaint in her absence. Ms Stockman then entered the room. Her employer’s version of events was that she had forcefully demanded to be told what the meeting was about and was asked to leave the room three times before doing so. Ms Stockman’s version, on the other hand, was that she felt compelled to defend her colleague who had been reprimanded by the director. The director in response shouted that she leave his office, causing her further humiliation.
Consequently, the HR Director asked to meet with Ms Stockman. During the meeting they discussed Ms Stockman’s complaint and she was informed that her conduct of interrupting the meeting and failing to leave would be subject to disciplinary action. Yet, unbeknownst to the HR Director, Ms Stockman had covertly recorded their entire meeting.
Disciplinary action for interrupting the meeting was taken against Ms Stockman and she was given a twelve month written warning. Following the disciplinary process, her employer scheduled a meeting to explore whether the working relationship had broken down to such an extent that it was irretrievable. At the meeting, Ms Stockman explained that she wished to return to work and would put the grievance behind her. The chairperson did not accept Ms Stockman’s submissions and dismissed her with immediate effect.
Ms Stockman approached an Employment Tribunal (“ET”) seeking reinstatement and compensation on the grounds that she had been unfairly dismissed. The ET found that her dismissal was unfair as the conclusion that there had been an irretrievable breakdown of the relationship was unreasonable given that Ms Stockman had only pursued a single grievance and was willing to put the matter behind her.
Prior to the proceedings, as part of the discovery process, it was revealed that Ms Stockman was in possession of the covert recording. Somewhat opportunistically, her employer argued that the ET should not award Ms Stockman compensation as the covert recording amounted to gross misconduct. The ET rejected the employer’s argument and found that it had not been made to entrap the HR director. Her employer challenged the ET’s decision on appeal to the Employment Appeal Tribunal (“EAT”).
At the EAT, her employer argued that the covert recording amounted to a breach of the duty of trust and confidence that is implied in every contract of employment. The covert recording was designed to obtain an advantage for Ms Stockman and place her employer in a position of disadvantage. The only possible conclusion was that Ms Stockman had sought to entrap the HR Director by secretly recording the meeting. Accordingly, had they been aware of the dishonest conduct at the time, they would have dismissed Ms Stockman for gross misconduct (and not for interrupting the meeting). Ms Stockman contended that there was no rule against covert recordings and, had it been of such grave importance, her employer would, at the very least, have amended its disciplinary policy to prevent subsequent employees from making such recordings.
The EAT had to decide whether an employer may dismiss an employee for gross misconduct when a secret recording is made. It acknowledged that most people carry a cell-phone which is capable of making a recording and it is not uncommon for an employee to record a meeting without saying so in order to keep a record, obtain advice or protect them from risk. The EAT held that covert recordings may not necessarily undermine trust and confidence between an employer and employee to the extent that an employer should no longer be required to keep the employee in employment. Nevertheless, it did not entirely rule out the possibility that covert recordings may amount to misconduct. They suggested that an assessment of the circumstances is required. The factors to consider whether a secret recording will breach the trust and confidence of the employer would be:
- The purpose of the recording: has it been used by a manipulative employee seeking to entrap their employer or a vulnerable employee seeking to guard against misrepresentation?
- The extent of the blameworthiness of the employee: was the employee expressly told not to record the meeting, did he/she lie about recording the meeting or was the recording made by an inexperienced employee who did not consider their blameworthiness when making the recording?
- What is being recorded: is it a meeting where a record is being kept anyway or is the meeting highly confidential containing personal information?
In this case, the EAT found that Ms Stockman had not recorded the meeting to entrap the HR Director, she recorded a single meeting which concerned her own position. That being said, the EAT did note that it is good employment practice for both the employer and employee to state if they have the intention of recording a meeting and that recording a meeting may not always be desirable as recordings have the potential to inhibit a frank exchange.
As it stands, South African courts have yet to consider the impact of covert recordings in the workplace. Hence, many rely on RICA to reason that secret recordings are permissible in the employment environment. Ms Stockman’s case indicates the potential negative consequences of cell-phone recordings and the need to manage this growing practice. Moreover, the EAT’s assessment suggests that, although covert recordings are legally permissible, in some instances they will amount to misconduct.
When our courts are called upon to consider this question they would be mindful to consider the balanced and persuasive decision of the EAT which allows for an assessment to be made on a case-by-case basis. In the interim, employers should take note of the following:
- In South Africa, and subject to any another law, RICA ordinarily permits a party to a communication to lawfully record the communication without the knowledge of the other party.
- Irrespective of the lawfulness of such conduct, there are valid concerns regarding covert recordings in an employment context.
- Employers ought to assess their disciplinary policy proactively and include the making of covert recordings as an example of gross misconduct that is contrary to the employer’s values of good faith and mutual trust and which may justify disciplinary action.
- Employers should insist that employees request consent from other parties to the communication and request permission from the company prior to making any recordings.
- The standards regarding consent and permission may be viewed as equally applicable to employers.
- Inform the employee at the start of the meeting that it is confidential.
- Request that employees confirm that they are not recording a meeting.
- Address work culture in which employees feel compelled to protect themselves.
- Provide alternative suggestions as to how meetings or discussions should be recorded (through formal minutes, by email correspondence, etc.)
- The EAT remarked on whether an employee may be dismissed for covert recordings. The question of whether covert recordings are admissible in disciplinary or litigious proceedings is a separate inquiry.