We live a tech-savvy world, where everything is attainable at the click of a button. But with this privilege comes penchant for sneakiness, as employers and employee alike seek to use emerging tech to prove discrimination and bullying in the workplace. We spoke to Stephen Wolpert, Partner at Whitten & Lublin – and speaker at HRD Canada’s upcoming Employment Law Masterclass 2018 – who revealed to us what drives employees to record HR conversations and what employers can do to mitigate the situation.
“When employees record an employer or HR practitioner, the consequences at this stage are fairly unclear,” he told us. “It can go in dramatically different directions. For instance, if an employee records a conversation where their boss is clearly bullying them or discriminating against them, a Judge could easily turn around and praise the employee for recording the conversation as evidence. It could essentially tip the case in favor of the worker."
On the other hand, Wolpert explained how there was a case last year in Manitoba where an employee who was already in some trouble with HR, and was having disciplinary meetings with management, tried to record some of a conversation and present it in court. The Judge found recording in this instance was misconduct in itself.
“The table is set for a big fight,” added Wolpert, “and it’s not clear where the courts are going to land. I believe it’s going to be incredibly context driven.
“At Whitten & Lublin, we act for both employers and employees. From an employee perspective, we see a lot of employees alleging discrimination at work and asking what they can do to protect themselves. Sometimes the answer is to tell management, or HR, and they’ll investigate. However, if those avenues have already been pursued and come to naught, one of the ways employees can empower themselves in is to record.
“If they can catch a boss doing something improper, that’s the sort of thing that would be really helpful to HR and more senior management in dealing with the problem.”
Wolpert notes that there is also an upside for employers to allow recordings: “You get lots of employers who talk about policies to ensure their workplace is free from bullying. And arguably, allowing an employee to record is a tool that helps HR to rid the company of those discriminatory managers. So, effectively, it can be a tool in companies’ favor too.
“Having said that. from the employer’s perspective, they’ll worry that the recordings can violate restrictions on the use of confidentiality information or lead to a breach of trust.”
As Wolpert mentioned, a lot of this will be driven by context. But how do we, as HR leaders, define that? Well, it’s all about linking the singular instance to a wider frame. Is this recording a one off? Is this a recording that’s come about only after the employee has gone through the traditional routes? Or is it a crusade, embarked upon separately from HR’s guidance?
“All this could be taken into consideration when a court looks into how to review the recordings,” added Wolpert.
So, how should employers protect themselves if they don’t want their workers recording private and sensitive information?
“Some companies may have policies which prohibit recording devices at work,” he told HRD Canada. “However, I think in a lot of cases that’s not going to be true. Instead, many companies will rely on a combination of an employees’ confidentiality obligations and a clear complaint policy dictating that any employee who has a concern should bring it to HR right away. The idea is to ensure that the employee is engaging HR, rather than acting on their own.”
Even still, Wolpert isn’t convinced that a no-recording policy alone will do the trick.
“I think it requires a genuine devotion on the part of employers to fully investigate when someone comes forward with a complaint – which is a lot easier said than done.”
Legal issues such as this one are making their way up HR’s agenda, and if you’re not careful you could find your organization on the receiving end of an employment tribunal. As the legal world shifts around us so too does the people function – don’t get left behind.
At HRD Canada’s upcoming Employment Law Masterclass 2018, in Toronto on 10 September, esteemed speakers such as Wolpert will be on hand to offer you practical advice and professional guidance on navigating all legalese jargon. Book your place now.
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