Legal Landscape of Recording Conversations at WorkNov 16 2023
In the modern workplace, issues of trust, transparency, and accountability are paramount. As a result, employees may be tempted to record conversations with colleagues or superiors to document important discussions to protect themselves in contentious situations. However, before reaching for that smartphone, it is crucial to understand the legal landscape surrounding the recording of workplace conversations in British Columbia.
When it comes to recording conversations at work, as long as you are part of the conversation, you do not need the other person’s consent for it to be a “legal recording”. This is known as the “one-party consent” rule. This is true if the conversation is with your co-worker, manager or employer. It would be illegal, however, to secretly record a conversation you are not a part of.
For example, you could theoretically record a meeting with your manager, but you cannot plant a recording device in the meeting between your manager and another employee if you are not present in that particular conversation. It is very important to note that the legality of the recording is not the only concern in employment relationships.
The question for secret recordings in workplaces is whether the employee’s actions fundamentally ruptured the employment relationship, such that the mutual trust between the employee and employer is broken. If that is the case, it is possible the employee may be fired for cause.
A Cautionary Tale for Employees:
There are two ways to be terminated in British Columbia: (1) with cause; and (2) without cause. If you are terminated ‘without cause’, your employer does not need a reason to terminate you. However, your employer must provide you with reasonable notice or pay in lieu of such reasonable notice (also known as severance) and you are generally entitled to collect Employment Insurance. If you are terminated with cause, then your employer needs a serious reason to terminate you, and you will not be entitled to receive any notice or severance and can be denied Employment Insurance.
The key question becomes, does secretly recording your conversation with your boss or another employee amount to ‘just cause’? Unfortunately, it is not a straightforward answer, and is heavily fact specific.
In certain industries, it may be easier to justify ‘just cause’ dismissal if an employee records a conversation at work. For example, employees who have greater autonomy are held to higher standards of trust: Godden v CAE Electronics Ltd. Additionally, a relationship of trust has been found to be significant in the banking industry where employees are held to a higher level of trust than employees in other industries: Rowe v Royal Bank of Canada. Further, many workplaces have policies that prohibit the recording of conversations with fellow employees and/or managers which means doing so not only may indicate there is a breach of trust but also a breach of workplace policies.
In the recent BC Court of Appeal case Shalagin v Mercer Celgar Limited Partnership (“Shalagin”) the court confirmed that an employee’s conduct of secretly recoding confidential conversations between employees was just cause for termination. The employee worked for Mercer Celgar for over 10 years and was a certified professional accountant. The employer dismissed him without cause, but reversed course after discovering that the employee had taken over 135 secret recordings of his coworkers’ conversations during his employment.
The court held that the secret recordings “fundamentally struck” at the employment relationship and undermined the relationship of trust between the employer and employee. As a result, the employer was justified in terminating the employee for just cause and he was not entitled to any severance.
Key considerations that the court weighed in favour of termination for cause:
- the employee admitted that he knew the other employees would be uncomfortable with the recordings;
- the recordings were contrary to the employer’s policies, including the Code of Business Conduct and confidentiality policy;
- the significant number of recordings over a long period of time;
- the nature of sensitive information recorded was serious and included personal details about the employee’s colleagues;
- other employees felt violated by the recordings; and
- the employee’s justification for making the recordings was not satisfactory since his concerns about discrimination, financial improprieties, and his bonus calculation were unfounded.
Key Takeaways for Employees:
Proceed with caution. Before you push start on your smartphone to record a conversation, you should ask yourself the following questions:
- What are you going to do with the recording?
- What led you to consider recording the conversation?
- How are other people going to respond to having been recorded?
- Will it help or hurt the work situation if you record the meeting without others knowing?
Key Takeaways for Employers:
In determining whether termination for cause is justified, an employer should consider the circumstances and gravity of the conduct. Key factors that will be considered by the court include the volume of the recordings, the sensitivity of the information being recorded, whether the recordings are contrary to workplace policies, and the employee’s justification for such recordings.
To navigate concerns about employees recording conversations at work and misusing confidential information, employers should have clearly drafted policies in place that set out an employee’s privacy and confidentiality obligations to their employer.
Employees: if you have made secret recordings or are considering doing so there are probably other issues going on in your workplace, we can help. We can provide guidance not only the recording(s) but the factors leading you to make this decision.
Employers: if you are considering surveillance or recordings of your employees or you would like to revise your workplace policies, we can help.
Please reach out to our intake team at 778 666 3723 to schedule a consult with one of our Employment Lawyers today.