You’ve been called to a meeting with your employer and you’re not sure what it’s about. Should you record the meeting just in case you need to protect yourself?
The question of whether workplace conversations can be recorded comes up increasingly often, particularly with fewer GPs working in solo practice.
You may want to record such a conversation or you may wonder whether others have the right to record a conversation with you.
But whether you can lawfully record a private conversation and what you do with the recording are complicated questions.
The law is complex
Don’t assume, just because you have a convenient recording device such as your phone handy, that you can or should use it without asking.
One party to a private conversation who records it without the permission of the other parties may be committing an offence in some jurisdictions.
All states have legislation in place regulating the use of listening devices, such as recording devices on mobile phones and other technology. Some states impose significant penalties, including prison sentences, for making, possessing, sharing or publishing unlawful recordings.
Telephone conversations raise additional issues. Federal telecommunications legislation prohibits recording and storing telephone conversations by using a device attached to the telephone system (with exceptions, such as in police investigations or where the parties consent to the recording).
Secret recordings can damage workplace relationships
Across all sectors, a number of cases have considered the secret recording of workplace conversations where either an employee has been dismissed for secretly recording a workplace conversation or it has become apparent during the unfair dismissal case that the employee has made a secret recording.
The law in this area is evolving but the current case law suggests:
- secretly recording a workplace conversation may be a valid reason for dismissal; and
- reinstatement may not be an appropriate remedy because of the damage that secretly recording a conversation could do to the relationship between the employer and the employee.
So can you make a recording?
Having said all that, it can be very useful to have a recording of a difficult conversation so that everyone can be clear about what was actually said and what was agreed on.
It is best to discuss the issue of recording up front. If you wish to record the conversation, ask. The other parties can generally say no to the recording.
If the meeting is being recorded, it is advisable for each party to make their own recording.
Recordings may not be transcribed correctly, so it is better not to rely on a transcript of the recording made by one party. You should always use the recording itself.
Avoid sharing or publishing recordings
If you do make a recording, be very cautious about sharing it or publishing it anywhere and it is advisable to seek legal advice before trying to use it.
There are separate provisions on publication of recordings, also with a range of exceptions.
Even if recording is not unlawful, it can be an offence to share or publish a recording of a conversation without permission.
Some jurisdictions allow recording and publication in some circumstances, for example where it is no more than reasonably necessary to prevent a serious or imminent threat of violence.
To reiterate, this is a complex area with a great deal of regulation.
If you wish to record a conversation, it is always best to seek the consent of the other party or parties to the conversation.
If you are concerned that you are being recorded without your consent, carefully consider what the recording might be used for and cease the conversation if necessary.
If you wish, you can ask the other person if they are recording the discussion and say that you do not consent to any recording of the discussion.
This will likely make the recording even more difficult for the other person to use in the future.
It is worth pointing out that the prohibitions only apply to private conversations. A public discussion or one that can easily be overheard will generally not meet the definition of a private conversation.
Further, while the law may prevent recording and publishing conversations, enforcement can be a challenge.
The practical reality is that technology now makes recording easy and it’s probably safest to assume that conversations could be recorded.
This article was originally published in Medical Observer on 3 April 2018.
The issue of recording meetings and discussions is a broader topic to be explored further. This article has focused on audio recordings by individuals in a workplace context.
Download our factsheet ‘What to do when requested to attend an employment meeting’ or view our video ‘Meeting with hospital administration’.
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