Secret Recording - Can it be used ?

[GeraintUK]

Hi All,
My wife has been summoned to appear at her employers on a charge of Gross Misconduct which was instigated by a new employee accusing her of bullying.

An investigation and interviews have taken place and apart from one agreed incident over telling the new girl to bring her own cup in to work the whole case is stemming from a recording that the accuser made.
She left her mobile phone in the office recording the conversation of my wife and two of her collegaues. It wasn't too bad imo, but was three friends having a general moan about the new girl.

From my research, this recording is a breach of privacy under the data protection act.
There is no action being taken against the girl who made the recording even though this took place in a school where the students are often in this office discussing confidential matters and that I feel brings up a safeguarding concern which is also not being addressed.

Is there any advice on the legality of this recording. If it was removed from the investigation report there would be no case at all. In fact, the report would conclude from the interviews that the new girl is constantly late and has been spoken to several times by other senior members of staff.

Many thanks in advance.

[Openlaw15]

Re: Secret Recording - Can it be used ?

Hi All,
My wife has been summoned to appear at her employers on a charge of Gross Misconduct which was instigated by a new employee accusing her of bullying.

An investigation and interviews have taken place and apart from one agreed incident over telling the new girl to bring her own cup in to work the whole case is stemming from a recording that the accuser made.
She left her mobile phone in the office recording the conversation of my wife and two of her collegaues. It wasn't too bad imo, but was three friends having a general moan about the new girl.

From my research, this recording is a breach of privacy under the data protection act.
There is no action being taken against the girl who made the recording even though this took place in a school where the students are often in this office discussing confidential matters and that I feel brings up a safeguarding concern which is also not being addressed.

Is there any advice on the legality of this recording. If it was removed from the investigation report there would be no case at all. In fact, the report would conclude from the interviews that the new girl is constantly late and has been spoken to several times by other senior members of staff.

Many thanks in advance.

In short, yes they can be used (admissible) in tribunals based on case law. However, the cases appears to be employees having recorded their employers, which was considered distasteful but admissible nevertheless. However, your defence should be any case law which permits covert recordings should be distinguished from my situation as the feature here is one employee against another employee, and not an employee versus an employer. So, your counter argument should be, it would be a breach of natural justice were the covert recording to be deemed admissible. It is likely a human rights' issue too, ie Freedom of Privacy but not too certain it would amount to a breach of human right. It could be but it's still a useful law to rely on. It's human rights issue because a tribunal is public authority and public authorities cannot act incompatibly with Convention rights (Human Rights Act 1998 etc).

[mariefab]

Re: Secret Recording - Can it be used ?

I'd be asking the employer about their policy on employees covertly leaving recording devices to capture conversations held in their absence. In many workplaces this would be a disciplinary offence.
Like openlaw says the employee could have recorded all sorts of information that it would be inappropriate for this employee to have access to.

[charitynjw]

Re: Secret Recording - Can it be used ?

Imho covert recording can be used in court, not necessarily to prove the veracity of the contents, but certainly to prove that a conversation took place, who was involved & what was said.
The DPA requires any information which could identify a living person must be fairly & accurately recorded.
Any sensitive material can be redacted, or better, the court could hear it in private.

[GeraintUK]

Re: Secret Recording - Can it be used ?

Thanks for the replies so far.
There is no policy in place, this was checked and my thoughts were that if the recording was to be used then it would be right to then ask for the person who made the recording to be held accountable for it being taken.
We do have the full transcript of the recording. I think I was hoping to be able to quote a breach of the data protection act much the same as you must have signs up if you are using cctv cameras.

The case is a bit silly in that if the person hadn't made the recording, then they wouldn't of known what had been said about them and therefore wouldn't actually of claimed that they felt bullied.
It was all about this person appearing in a youtube video about sleeping around (a pop song) which the three discussed in the office and said we should leak it. Silly yes, but they would never of acted upon it.
My wife has been told to expect to be fired for gross misconduct when she has her meeting with the governors of the school. To me, it's complete madness it has gone this far. She has been told not to tell anyone she is being put up in front of the governors, not even her line manager who was one of the witness statements and is 100% behind my wife.

[teaboy2]

Re: Secret Recording - Can it be used ?

Tip - Its only bullying/harassment (in this specific matter) if such comments were made directly to the victim and therefore made with intent to cause harm, distress or suffering. As the alleged victim was not present when the conversation occured then it was a private conversation not involving the alleged victim or intended for the alleged victim to hear, therefore there was no intent to cause any distress, suffering or harm! The fact the alleged victim felt the need to record such private conversation convertly shows signs she is maybe being paranoid or an attention seeker (Possibly has underlying mental health issues). Reporting your wife for merely telling her to bring her own cup to work, i assume because the alleged victim used other peoples cups (trepass to property not to mention unhygenic), also suggest the allege victim is a vulnerable person (mentally).

What about the other people involved in the conversation are they facing disciplinary action too?

Another way to look at this, is is your wife the real victim of a delibrate campaing by the alleged victim and therefore making your wife the victim of harassment and bullying. think about it - 1 - A grievance for simple telling her to bring her own cup into work, then 2 - covertly recording your wifes prviate conversations to entrap her! I think it time your wife puts in a counter grievance for harassment and bullying! Listing all instances, no matter how small or irrelevant they may have seemed at the time - Your wife probably be surprised just how many they actually were when she thinks back about then all!

Off course i may be wrong and your wife may not be a victim herself - But something about this new employee already using convert measures and having put in a grievance about such tiny issue (the cup - Not exactly the Jules Rimet was it) claiming bullying and harassment makes me think that shes the bully and you wifes the victim!

I bet this alleged victim has been making comments on her facebook page too!