Q: I have been making redundancies at my company and, as we work remotely, this has been happening over video calls. I’ve discovered that an employee has recorded the conversation and posted it on social media. What can I do now?
A: This is becoming more common and may well result from a combination of our changing workplace culture, with remote dealings rather than face-to-face ones (which are more appropriate for HR and career discussions), and more impersonal and remote management.
Recording and posting a conversation such as this on social media not only triggers potential data protection breaches and reputational issues for the employers in question, but there are also employment law considerations to think about.
What can employers do?
Large scale layoffs have been a feature in some sectors in the past few years. When coupled with the power of social media it is not surprising that employees feel aggrieved and seek to record and publicly disseminate confidential discussions.
This sense of unfairness and risk will undoubtedly increase if individuals feel there was no proper process involved or the discussions have been lacking in empathy or support (for example, exploring redeployment and other alternatives, an appeal against the decision as well as offering outplacement).
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Under UK law, to ensure a fair dismissal, employees should be consulted before being made redundant or laid off. Such consultation should be meaningful and include discussion about the reasons for the redundancies/headcount reductions, ways of avoiding redundancies (for example, how to achieve other cost savings), selection and redeployment.
It should be assumed that HR meetings (which also applies to email dialogue), and the way in which they are conducted and what is said, could be repeated in an employment tribunal or other open forum; so, manage and set the tone of the discussion accordingly.
This will put employers in a better position and is also likely to improve the discussions with the employee. It helps to minimise the reputational risks if the meetings are conducted professionally.
If an employee is under notice or yet to be paid in lieu of notice, action could be taken if it can be said that they have acted in breach of their contract of employment. Ensuring that specific contractual provisions, such as rules about conduct and privacy, and data policies address surreptitious and unauthorised recording would be important.
This would need to be discussed with the employee and that may lead to the individual taking action to remove the unauthorised recording rather than risk being dismissed for misconduct (potentially instead of redundancy).
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If their employment has already been terminated it is difficult to take action against them for breach of confidence or breach of contract where recorded meetings are shared publicly. If others in the meeting did not know or consent to being recorded there may be data privacy and data protection rights that could be relied upon to curtail or limit the circulation of this recording.
Regardless of a potential breach of data protection rights and breach of contract arguments, the damage done to the employer’s reputation will be almost impossible to undo given how quickly social media posts can go viral.
Managers should always seek confirmation before a meeting starts (particularly a remote meeting) that it is not being recorded and then confirm that the HR notes will be circulated later. This will help employers to have a degree of control over the situation and any potential tribunal claims down the line.
Audrey Williams is an employment partner at Keystone Law
