Our October update is a focus on confidentiality and monitoring. These are areas that we are advising on more frequently and which have been more of a focus since the data protection changes.
Covert Recordings – are they admissible?
With the use of i-phones and other similar devices, you are best placed to assume that your employees will record or at least attempt to record meetings and any formal hearings that you ask them to attend.
In deciding whether to allow the admissibility of an employee’s covert recording of a meeting, the EAT recently held that each matter will be considered on a case-by-case basis taking into account the following;
• Purpose – was it made by a panicked employee, or an individual looking to entrap their employer?
• Information – did the meeting concern confidential or personal information pertaining to someone other than the employee?
• Attitude – is the act of recording meetings listed as misconduct or gross misconduct within the employer’s disciplinary procedure?
In this particular case, the recording was admissible. The EAT decided that the Claimant was clearly flustered and had only intended to ensure she wasn’t misrepresented. They rejected the Respondent’s appeal that had the Respondent been aware of the recording the Claimant would have been fairly dismissed. This was supported by the fact that since the incident the Respondent’s policies had not been updated to indicate that the making of such recordings was an example of gross misconduct.
Whilst updating policies to address recording is practical, a simpler way for you to avoid risk is to record the meeting yourself. If your policy does not allow this then you need to advise the employee that you plan to record the hearing and will provide them with a copy of the recording. Whilst in such cases their consent would be required, it would be unusual for them to object if the notification was included within the letter inviting them to a hearing. Not only does this allow you to take control of any meeting or hearing, it reduces the time spent in litigation arguing over whose version of the minutes is the most accurate.
Confidential information – how to keep it safe.
When a prominent employee leaves, employers often worry about how that employee might use information to which they became privy during their employment. To avoid any misuse of property or information that should belong to the company, you need to ensure that your contracts are well drafted. The three clauses below are essential in these cases.
• Restrictive Covenants – this is a common and essential way of protecting a business’ interests by preventing ex-employees from poaching current employees; soliciting trade from customers or suppliers; or working with competitors. Restrictive covenants must be drafted carefully to ensure they only restrict that which is absolutely necessary for protecting the legitimate business interests of your company.
• Confidential Information – a confidentiality clause can ensure there is no ambiguity surrounding what you as an employer deem to be confidential and your expectations as to how this should be handled when an employee ceases to work for you.
• Garden leave – sometimes you might want to keep an employee from the office or from using your systems during their notice period and garden leave allows you to achieve this.
CCTV Monitoring – Smile, you’re on camera.
Does your business use CCTV to monitor the workplace? Is the use of this CCTV covered by a policy? Following the issuing of a fine to PWC by the Greek Data Protection Agency it is increasingly clear that employers need to take the processing of employee data, in whatever form, seriously.
The use of CCTV in the workplace can be incredibly beneficial, particularly from a security perspective, however it’s important to ensure your use of CCTV does not fall foul of any of the provisions of the GDPR. Employers should have policies on CCTV monitoring and ensure that they have considered/addressed the following;
• Purpose – why is CCTV monitoring used?
• Retention– how long are recordings stored on the system?
• Relevance – what areas are covered by CCTV? Is it necessary to meet the purpose for this to be the case?
• Security and confidentiality – who has access to the recordings?
• Awareness – are employees aware they are being recorded?
If you’d like support implementing policies related to any of these topics, please contact us.