Perhaps we don’t give it a lot of thought, but these days we are surrounded by devices that can make recordings.

Not so long ago, to make an audio recording of a conversation you would have needed to pull out your stereo tape-deck, plug in a microphone, and press record and play at the same time. It would not have been subtle.

Nowadays, most of us walk around with small recording devices hidden in our pockets or purses, in the form of mobile phones.

Recording a discussion is as easy now as swiping an on-screen switch.

It can be tempting to make use of this readily accessible technology, especially when you don’t trust that the person you are going to record will own up to having said what you think they will say. A recording might be priceless, irrefutable proof.

But should you do it? What are the hidden costs?

NOT UNLAWFUL TO RECORD

The starting point is that there is nothing unlawful about making a secret recording of a conversation.

That may surprise you. But the thinking presumably goes that, provided you are a participant in the conversation, you are not breaching your conversation partner’s rights. You are merely making a record of your discussion.

You could make a similar record by writing down as much of the conversation you recall immediately after it ends. An audio recording is merely a more accurate record than what you might recall yourself.

MAY BE UNFAIR

Nevertheless, employers and employees have an obligation to deal with each other in good faith. That means they must be able to trust one another.

If you make a recording of your conversation at work with your boss or your employee without their knowledge, you may possibly be breaching that duty.

But it will depend on the facts.


Examples where it will likely be unfair include situations:


• where you give the other party the impression that the discussion is confidential. In that case, if you later want to refer to a secret recording that you made, you may be held to have misled your conversation partner.
• where you tell the other party that the discussion is not being recorded. That would of course be an outright deception.
• where you are recording the conversation for an ulterior purpose. If you are only having the discussion to try and elicit evidence in support of an accusation, then it may also be unfair to make a secret recording.

Other than the examples above, it appears that an audio recording will often be treated as no different from the parties taking notes of what was said – either during the discussion or immediately afterwards.

BEST PRACTICE FOR EMPLOYERS: GET CONSENT

It is probably fair to say that employers will be held to a higher account when it comes to secret recordings because as an employer you have a duty not to act in any way that disadvantages your employees.

It is conceivable that your employee might object to being recorded secretly, on the basis that they can no longer trust that you will deal with them in an open and transparent manner. They may say that puts them in a position of disadvantage in their employment.

Nevertheless, it can be very useful to have a recording of a discussion with your employee, particularly if it forms part of a disciplinary process at the end of which you will have to make a decision based on what they have told you.

Best practice suggests that if you want to record a conversation with your employee, you should be upfront with them about it and get their consent before you press record. That way you avoid the risk that the secret recording breaches your obligation to act in good faith.

WHAT DOES IT SAY ABOUT YOUR RELATIONSHIP?

Regardless of whether you can or cannot secretly record a conversation, you might want to take a step back and ask yourself what has happened to your relationship if you have reached the point where you are tempted to act so covertly.

Clearly the desire to secretly tape a conversation reveals a certain level of distrust. And if it is revealed that you recorded the other party secretly, that sense of distrust may turn mutual (if that was not already the case).

So if you have any hope for the relationship, give serious thought to what impact a hidden recording of the conversation is likely to have.

CONCLUSION

Secretly recording a conversation at work is not unlawful in itself. But it may be a breach of your duty to act in good faith and have ongoing repercussions for your work relationship in future.

If you want to avoid any risk of being seen to have damaged the relationship, get the other party’s consent to the recording at the outset.