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Recording meetings may not be a good idea

This article is being dictated on a recording device just over one inch wide and about four inches long. It would fit nicely in a shirt pocket. If you are a manager thinking of putting one of these in your pocket to record a meeting with an employee or an employee having the same thought, you should probably reconsider.
 
I have been asked on a number of occasions by employees, and a few times by employers, whether they should secretly record a workplace meeting. My answer is rarely yes. It’s not that there is anything illegal about it. If you are a participant in a conversation, there is nothing criminal about you recording that conversation secretly. If you are not a participant, it is a criminal offence.
 
The workplace is about relationships and whether the spy is an employee or the employer, if the fact of the recording is ever discovered, the relationship will be permanently destroyed.
 
On the few occasions where I have agreed with an employee that recording an upcoming meeting might be in their best interests, the working relationship was clearly coming to an end in any case.
 
The scenario usually goes something like this: The boss is sexually harassing the employee through sexually suggestive comments or invitations. The boss is smart enough never to make these comments or invitations in the presence of others. The employee is at their wits end and can hardly stand to spend another day being subjected to this humiliation. He or she does not believe that their word alone about what is taking place will win the day if they take the matter up with their boss’s boss.
 
In this case, the ends justify the means. If the employee is going to end up walking out on a good job in frustration if nothing changes, there is nothing to lose by recording some of these conversations, even if the company may see you as someone not to be trusted. In any case most rational beings would view the outrageous nature of sexual harassment as justifying the extraordinary action of secretly recording a conversation.
 
Another scenario that I have come across is that of the subtle constructive dismissal. The boss is trying to get the employee to quit and save themselves the money of paying a severance package by berating the employee in private and perhaps suggesting that they are going to make life hell for the employee if they don’t quite their employment. An employee considering recording the conversation in this circumstance should be very careful in assessing the situation. They should be sure that the writing is all over the wall that the boss wants them out. If that is truly the case, they have nothing to lose by risking getting caught recording a meeting. They will be leaving anyway but the recorded conversation will help establish what actually took place in a court of law.
 
The risk is that  if the employee is wrong and the employer was just trying to offer some constructive criticism, the relationship will be destroyed if the employee is caught recording the conversation. No boss in the company will want that employee working for them in the future. Nobody wants to work with somebody on a daily basis who may have a recorder in their pocket.
  
I have never advised an employer to secretly record a conversation with an employee. The employer has more than one relationship to manage. An employer discovered by their workers to have recorded a conversation in secret will likely never have the luxury of a truly frank and open conversation with any employee ever again.
 
The only logical reason for an employer to secretly record a conversation is to use that recording as evidence in litigation. The moment it is used as evidence, word will get out to all employees that a conversation was secretly recorded. The damage to workplace morale will likely be permanent.
 
In most workplace situations where either an employer or an employee wants to document what happened in a conversation, there are better alternatives. An email to the other party the next day confirming the nature of the conversation and its contents and asking the other party to advise immediately if anything in the memo is inaccurate will usually suffice.
 
Alternatively, simply make notes during the meeting or immediately after the meeting.
 
People who have had a conversation secretly recorded feel personally violated. They experience instinctive outrage at the sneaky nature of the act and the party who played spy is permanently labelled. Unless the relationship is truly beyond repair, that is a lot to risk.
 
Ed Canning is a partner practicing in the Labour & Employment Group at Ross & McBride LLP.

As published in the Hamilton Spectator, April 2, 2005.
 
Ed Canning
Ed Canning
P: 905.572.5809
ecanning@rossmcbride.com