Can I secretly record people at work?

We are often asked by employees whether they should record people at work to get evidence about how they’re being treated.

A recent case out of the British Columbia Supreme Court highlights some of the risks of conducting secret or “surreptitious” recordings for employees in the workplace.  In Shalagin v. Mercer Celgar Limited Partnership, 2022 BCSC 112 (“Shalagin”), the Court found that the employer was actually justified in firing an employee for cause because he recorded his fellow employees at work without their knowledge or consent.

The plaintiff, Mr. Marshall, had been terminated by the employer, Mercer, in 2019. After he was terminated, it was discovered that Mr. Marshall had made extensive recordings with co-workers and management, without their knowledge – and, in the case of at least one individual, for over a period of five years.

Justice Branch of the British Columbia Supreme Court found that surreptitious recordings made by a Chartered Professional Accountant (“CPA”) of discussions with co-workers in themselves gave after-acquired cause for termination. In this case, the employer had workplace policies including a code of business conduct and ethics, as well as a confidentiality policy. As a CPA, the employee also had professional and ethical obligations under the Chartered Professional Accountants’ code of conduct.  In its reasons, the Court stated that when it came to surreptitious recordings at the workplace, strict legality was “not the sole barometer” on the issue; though recording a conversation is legal per se without the knowledge of one party, “the question is whether the employee’s actions fundamentally ruptured the relationship, such that the mutual trust between the parties is broken.” (It is worth noting here that the common law imposes a duty of fidelity loyalty of an employee to their employer. This is a holdover from feudal times during which servants owed such duties to their “Lord” or “Master.”) The judge went on to cite a number of other cases for this proposition that secret recordings rupture the trust in the employment relationship.  In one case, a probationary employee was found to have been fired for cause for secretly recording his employer; in another, it was found that it was reasonable for an employee not to return to an employer who had secretly recorded him.

In our view, Shalagin does not stand for the proposition that an employee can always be fired for cause for secretly recording someone at work.  All cases of termination have to be considered in the specific context, including, in these sorts of cases, the quantity of any recordings, the position and length of service of the employee, and the conduct of the employer.

That said, we’re approached by employees asking whether they should record their co-workers or bosses at work. We’ve never recommended that a client do so.  Adjudicators generally frown on this behaviour, especially in the workplace where trust between employees and employees and the employer is so important. (On this issue, the Court in Shalagin noted that, from a policy perspective, it would not be helpful for courts to encourage other employees who feel mistreated at work to routinely start secretly recording co-workers.) 

So, what is an employee to do?  We generally recommend that the employee take accurate, detailed handwritten notes during meetings or immediately right after events or, better yet, to purchase a notebook and keep a diary of important potentially relevant events. Handwritten notes are generally better than if they are typed, because the typed version can be easily modified at a later date. If typewritten notes are made, the person relying on them will likely have to produce copies of them in their original form, along with the respective metadata. Also remember that handwritten notes must be made at or immediately after the events, i.e., contemporaneously. If an employee later needs to give evidence they may refer to notes that were made contemporaneously to refresh their memory about what was said and what happened. Make sure to record the date and time of the events and who was present. In some cases, handwritten notes made contemporaneously may themselves become evidence.  Judges, labour board adjudicators, and arbitrators find handwritten notes taken at or immediately after events to be the most reliable. If the client’s worried about a specific meeting with management or a co-worker, the employee can also try to ensure there’s a friendly witness there who can corroborate the events as well—they should be asked to make notes too and to provide a copy to the employee.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

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