When are work conversations private? Not often at all, not when every employee has a recording device in their pocket in the form of a smartphone.
And cases in Employee Tribunals are demonstrating that recordings made by staff are admissible evidence – despite efforts by organisations to claim they might be ‘gross misconduct’.
For example, in a recent tribunal case against Phoenix House, an employee claimed they were unfairly dismissed after falling out with their manager. The tribunal upheld the decision, but during the hearing the charity discovered the employee had recorded a conversation covertly in an attempt to provide evidence of how they were being treated. Phoenix House appealed, saying if they’d known the recording had been made, this would, itself, have been grounds for dismissal. But the Judge found the recording was relevant to the case and so entirely admissible.
In another, more complicated case, a disciplinary hearing at the East of England Ambulance Service NHS Trust was recorded by an employee. This included a ‘private’ conversation between the NHS Trust’s solicitor and the panel. Even in this case the tribunal decided that the evidence was relevant and in the public interest and should be admissible, and not covered by ‘legal professional privilege’.
As the Judge in the Phoenix House case said, it’s a difficult area. There are a range of different reasons why an employee might use their phone in this way, from a “highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”; “It may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording.”
As a rule, it’s rare that an employer will be able to prove making a recording is gross misconduct. It’s worth being clear in procedures around disciplinary hearings that making recordings is prohibited – but the best response from any employer, rather than fear of recordings, is to think about the quality of conversational skills among managers so that any recordings are a good thing, not a threat.
All managers need to have the ability to have grown-up conversations, no matter what the situation. That’s their job: not to end up retreating into entrenched positions, but to have listening skills, situational awareness, empathy – what we call Conversational Intelligence. The result of this confidence in CI for organisations will be a quite different attitude to covert recordings, as consistent evidence of good management practice and a good organisational culture.
Arran Heal, Managing Director, CMP, www.cmpsolutions.com