Legal Recordings.
Ever wondered what your rights are with regards to recording conversations
? Maybe you are a business that wants to record its phone calls? Perhaps you are an employee who wishes to record your disciplinary hearing? Either way, it is good to know where you stand.
In this day and age you can buy anything that you could possibly need for recording conversations. You could buy telephones with inbuilt recording devices; digital recorders that fit in your pocket, even your mobile phone could become a recorder.
However, conversations that are recorded without the consent of the other party could essentially be considered a breach of that persons right to privacy. But if the recording is central to proving a fact in a dispute however, how does the law balance the protection of an individuals rights against ensuring justice is carried out?
Person to Person
When two people are in a conversation, there is no prohibition of recording conversations. It only becomes an issue when the conversation is then provided to a third person without the consent of both parties. Consent could be obtained retrospectively, or by further arguing that it is the public interest that the recording be secret. This is a defence taken by investigative journalists, as by disclosing the recording, the nature of the conversation may have been altered.
Injunctions would be the most effective remedy for preventing the recording from being made public, along with damages that may flow from it.
The law does not prohibit individuals from recordings from their own communications provided that the recordings are for their own use. Recording is only prohibited when the material is made available to a third party. There are defences against this, such as public interest.
Companies.
Companies have different rights to record as they may wish to record telephone conversations for training or security purposes This is all regulated by The Telecommunications Act 1984. When purchasing a telephone system for your business the licence granted to use the system is bound by the guidance issued by the OFTEL and the Department for Business, Innovation and Skills.
The Regulation of Investigatory Powers Act 2000 (RIPA) permits a company to laqfully record conversations only to
Establish facts
Ensure regulatory compliance
Demonstrate standards that are achieved or need to be achieved by training.
The law also requires that all reasonable efforts be made to alert the parties to the recordings existence. This could be done through an automated voice advising you on the phone prior to the call being placed, or via the companys website.
Employers
The creation of such legislation as the Data Protection Act 1998 (DPA) and the Regulation of Investigatory Powers Act 2000 indicates to us that there is a growing trend of increasing surveillance across society is also extending into the workplace. With regards to secret recordings in disciplinary hearings, there have been some interesting developments. The case of Amwell, Mrs Dogherty, who had been dismissed for gross misconduct for an alleged physical assault on one pupil and inappropriate language used to another, had secretly recorded the disciplinary meeting. This was crucial to Mrs Dogherty proving that she had been treated unfairly and been unfairly dismissed as a result. The tribunal declared that all the recordings were admissible. However the employer appealed, claiming that the recordings violated his right to privacy as seen under article 8 of the Human Rights Act (1998).
The case went to the Employment Appeal Tribunal, where the court declared its displeasure at the nature of the recordings ( i.e. secret) but declared that the recordings that were relevant to the dismissal were admissible. The recordings of private conversations that Mrs Dogherty had managed to record were not admissible.
There are some practical considerations that have to discussed with regards to this development. The starting point for any tribunal will be whether the evidence is relevant. In order to do this, the material has to be watched or heard before decisions can be made about its admissibility. This raises the issue of bias.
Limits of covert surveillance in the workplace:
Employers can:
Sometimes rely on evidence discovered in private locations such as the employees home. There is a general principle that a court of law should decide the case on the basis of all available evidence. But there is a high risk of costs being awarded against them for unreasonable conduct, depending on how the evidence was obtained and the circumstances of disclosure- McGowan v Scottish Water
Cyber movements ( i.e. internet sites) can be monitored.
Monitor letters, emails and telephone calls on the basis that this prevents mal practise and crime, but employees should be notified of this.
Employees can:
Record interviews and disciplinary hearings, but should be aware that recordings of parts of the hearing where they were not present will probably be excluded. Note that there is no statutory obligation to agree to the employees request, though employees should be allowed a note taker by statute.
Have access to confidential records held about themselves.
by: Antonia Torr
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