While the law provides some leeway for employers to record the conversations and activities of employees, whilst they are engaged in business related activities, and use such recordings against them, as long as it is “in the interests of justice to do so”, employees have a lot less space to manoeuvre when recording the activities of their employers.

Aadil Patel, national head of Cliffe Dekker Hofmeyr’s (CDH) Employment practice, explains that every employer has a right to privacy and confidentiality and this right is often clearly set out in an employee’s employment contract. Employees also have a common law duty to act in the best interests of their employer and this includes keeping the employer's private matters private.

“When a meeting concerning strategy or planning is secretly recorded by an employee, they could well be in breach of the confidentiality undertaking in their employment contracts and action could be taken against the employee,” says Patel.

He explains that such confidentiality breaches are also not only restricted to audio recordings of meetings, but could also include visual recordings, such as photographs, of any part or activity of a business that the employer deems is covered by the employee's confidentiality undertaking.

Patel cites a case in which an employee took photographs of a production line in the factory where the employee worked. “The employer then demanded that the employee delete the photographs and hand over his phone so the employer could ensure the images were in fact deleted, as his actions were considered to be a breach of confidentiality.

“The employee refused to erase the images or hand over the phone and was subsequently subjected to disciplinary action and dismissed. The Labour Court found that, in this case, the employee's dismissal was substantively fair and upheld the decision to dismiss,” says Patel.

Furthermore, over and above an employer’s right to privacy, employees should be aware that the organisation they work for might have additional internal policies that state that no one is allowed to make any recordings of any interactions or activities that pertain to the business.

“An employer could easily regulate the recording of any or all business activities, by simply making it a rule of the workplace. Employees should therefore be careful when photographing or recording any business activities, as such actions could be in breach of confidentiality clauses or a workplace policy.

“Employees should be familiar with what is stipulated in their employment contracts and with any internal rules or policies that govern the making of recordings at their workplace,” says Patel.

Employees should also be aware that it is legal for an employer to monitor and record their communications, especially if such communication is conducted using the employer’s equipment, such as phones or computers. This is because, an employee cannot generally have a reasonable expectation of privacy whilst using their employer's equipment.

“It is often stated in an employee’s contract that their employer may monitor and record their activities and communication at work. Such recordings may then be used by the employer against the employee in a labour or legal dispute,” says Patel.

The law goes even further in this regard. Recorded conversations can be used against an employee, even if the recording was obtained in a manner that violates an individual’s right to privacy. This is notwithstanding that the Constitution stipulates that evidence obtained in a manner that violates any right in the Bill of Rights must be excluded.

Section 35(5) of the Constitution prohibits the use of evidence obtained in a manner that violates the Bill of Rights. However, this is only where it would be unfair and  detrimental to the interests of justice. As such, if the use of evidence obtained in breach of the Bill of Rights is not unfair or is not detrimental to the interest of justice being served, such evidence may none the less be admissible. 

Numerous Labour Court rulings have made it clear that employers can record employees and use these conversations against them. This is even in cases where an employer has breached the privacy of an employee and can prove that the employee either gave his or her consent to being recorded or that the breach was justified by necessity or it was in the interests of justice to use such evidence.

Written by Aadil Patel, national head of Cliffe Dekker Hofmeyr’s Employment practice