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Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 44874
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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is covertly recording my disciplinary investigation a breach

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is covertly recording my disciplinary investigation a breach of the data protection act? during my hearing, I informed my employer that I had recorded the investigation interview and my employer has said it constitutes gross misconduct under the data protection act and they have added it to my disciplinary

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. For now please let me know how long you have worked there.

Customer:

3 and a half years

Ben Jones :

Thanks for your patience, whether secretly recording a meeting is illegal depends on the contents of the conversation that is being recorded.


 


The Data Protection Act 1998 (“DPA”) will apply in situations involving processing of personal information. If sensitive personal information about other people has been inadvertently recorded then its use could be restricted by the DPA. However, if the information is to be used for litigation purposes, such as evidence in court, there is a possible exemption from the DPA.


 


The leading case on this matter is Dogherty v Chairman and Governors of Amwell School. Mrs Dogherty, a teacher in the school, had made secret recordings of an "open" disciplinary meeting that she was subjected to and the subsequent "private" appeal meeting. She then tried to use these recordings in her claim for unfair dismissal against the school.


 


The school argued that the secret recordings infringed the human rights of the school governors present at the meeting. The Employment Appeal Tribunal decided the following:



  • The contents of the "open" disciplinary hearing were capable of being secretly recorded as it was directly relevant to Mrs Dogherty's claim

  • The recording of the "private" appeal hearing was inadmissible as evidence. As this was a full and frank exchange of views between the governors themselves and was conducted in private, it was not directly relevant to the claim.


 


So unless there was a specific workplace policy that prohibited recording of such meetings, the legal position will be governed by the above.

Customer:

I have read all this on line - what i dont undersatnd is if by me recording the interview i have breached the data protection act or not - i recorded the interview in case the interviewer (my manager) said something untoward to me - I reported him over a year ago for calling me a vindictive bitch during an interview situation and since then he has not been allowed to hold a meeting alone with me - however, even though there was another person present, during my appraisal he said some horrible things that made me cry.

Ben Jones :

you have not broken the DPA if you have not recorded personal data about others in the meeting

Customer:

there are details of the medical condition of customer who complained on the recording, but i didnt know about them until they were read out in the meeting - i was only recording it to capture the way my manager speaks to me and havent played it to anyone yet - my understanding after loads of research is that its not a breach of the DPA unless i play it to anyone other than a solicitor for use in an in employment tribunal - is that right or have i breached the DPA - even though it was inadvertently?

Ben Jones :

If you did not deliberately go out to record personal details about someone else and it happened inadvertently and you did not retain the recording or use it in any way afterwards, then it is unlikely a breach would have occurred and the fairness of any disciplinary action will be questionable.

Customer:

thats excellent news thank you Ben

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