Can You Be Dismissed For Secretly Recording Your Boss?: UK Employment Tribunal Weighs In

How often have you been in a meeting and decided to press "record" on your cell-phone to avoid having to take copious notes? Have you ever secretly recorded a tough conversation with your manager in order to protect yourself? What are the chances that you have not informed your employer of these secret recordings because you have never been quite certain whether what you are doing is ethical - or even worse - a disciplinary offence?

In terms of section 4 of the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 ("RICA"), as long as you are a party to a conversation you may audio or video record it without the other parties' consent. South African courts have yet to decide whether an employer may dismiss an employee for making a covert recording and RICA has long been used to justify advice that there is no prohibition against an employer or employee secretly recording a workplace conversation. However, an Employment Tribunal in England was recently called upon to address this very question - and its answer may offer some guidance to the South African labour law landscape.

In May 2013, Ms Stockman raised a complaint with her manager regarding the director of her department. Subsequently, her manager, the director in question and a colleague met to discuss Ms Stockman's complaint in her absence. Ms Stockman then entered the room. Her employer's version of events was that she had forcefully demanded to be told what the meeting was about and was asked to leave the room three times before doing so. Ms Stockman's version, on the other hand, was that she felt compelled to defend her colleague who had been reprimanded by the director. The director in response shouted that she leave his office, causing her further humiliation.

Consequently, the HR Director asked to meet with Ms Stockman. During the meeting they discussed Ms Stockman's complaint and she was informed that her conduct of interrupting the meeting and failing to leave would be subject to disciplinary action. Yet, unbeknownst to the HR Director, Ms Stockman had covertly recorded their entire meeting.

Disciplinary action for interrupting the meeting was taken against Ms Stockman and she was given a twelve month written warning. Following the disciplinary process, her employer scheduled a meeting to explore whether the working relationship had broken down to such an extent that it was irretrievable. At the meeting, Ms Stockman explained...