Recording an investigation meeting

Is it necessary to announce intent to record a meeting?

Question: Can an employee who is called in for an investigation record the interview on a digital handheld recording device? Does either party have to announce the intent of recording the meeting? If the device is placed on the table, in full view, is that sufficient notice?

Answer: Making an audio recording of an investigation meeting is not unlawful per se, whether by the employer or the employee. Generally, it is usually not unlawful for a participant in a conversation to record it, surreptitiously or otherwise. Where the law becomes more complex and restrictive is when a third party does the recording.

However, a participant recording a conversation between management and an employee can have negative consequences. When either side brings in a recording device, it can make the other side feel challenged or attacked. The non-recording party may feel the recording is being made so that it can be used against her later. This can foster an atmosphere of distrust and lead to guarded and less productive communication. So, while technically legal, making a recording can be damaging to the employee-employer or management-union relationship. One option for the non-recording party is to make its own recording as well. That way, there is assurance the entire discussion will be recorded accurately.

Whether putting the recorder out on the table constitutes notice depends on the context. In many circumstances, common sense would dictate placing a device on the table and turning it on prior to an interview would be fair notice the conversation will be recorded. However, if a person uses a handheld recording device as part of her regular job duties, merely having it on the desk would not necessarily constitute notice.

There is no expectation of privacy in an investigation meeting, so recording in that context does not have the same privacy issues that surround surveillance recordings. In an investigation meeting it is presumed people will make some sort of record of the meeting. Making a more accurate record with a recording device is unlikely to be a problem.

If the recording is made by the employer, it must protect any personal information just as it protects any other record containing personal information. Employees owe no duty of privacy to their employers, so are not bound to protect the recording.

If the matter were to escalate to arbitration or court, then the recording, whether surreptitiously made or not, could end up in evidence. In unionized settings, however, there is a big caveat to that general rule. Labour relations boards are mindful of their obligation to facilitate good relations between employers and unions. When deciding whether to allow recorded evidence, they will consider any detriment to the management-union relationship that may result from admitting the recording and will balance that against the evidentiary value of the recording.

In an arbitration setting, if the recording party does not disclose the tape in advance of the hearing, it may not be admitted. Also, self-serving evidence is not allowed, so that which confirms other evidence will not be admissible.

When the recording is done as surveillance and involves a third party recording others, arbitrators will not always allow the recording into evidence. In the reported arbitration cases involving participant-recorded evidence, however, the recordings are usually accepted into evidence without issue.

All relevant legislation, including privacy laws, any specific policies that the employer has and the collective agreement or employment contract can also come into play.

Brian Kenny is a partner with MacPherson Leslie and Tyerman LLP in Regina. He can be reached at (306) 347-8421 or bkenny@mlt.com.

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