1 Feb 2008, 09:00

A man and his colleague were employed by a care agency, working as caregivers for young people with disabilities. They worked as a team, looking after the clients in their own homes.

The colleague became concerned that the way that the man spoke to the clients was sometimes abusive and inappropriate. He believed it posed a safety risk to those clients.

One day, using his cellphone, the colleague recorded the man's conversations with the clients and gave the recording to the employer. The man was unaware that he had been recorded. The employer then used the recording in disciplinary proceedings against the man, who was given a warning.

The man complained to me about the fact he had been covertly recorded. His complaint raised issues under principle 4.

Principle 4

Principle 4 states that personal information must not be collected by means that are unlawful, unfair, or intrude to an unreasonable extent upon the personal affairs of the individual concerned.

I accepted that the colleague had serious concerns over the man’'s behaviour with clients. Those clients, who were unable to protect themselves, were potentially at risk as a result of the behaviour. Without the recording, the employer would have had to judge what the man had said to the clients without any clear evidence. Notes alone would have been less accurate. The recording only occurred on one occasion.

On the other hand, covert recording is intrinsically intrusive, and needs strong justification for its use. The colleague could simply have told the employer what he saw and heard. That would be the more usual way to deal with such a situation.

This was a difficult case. However, considering the unusual set of circumstances, I decided that there was no breach of principle 4 here. The allegation was serious, and there was a risk of harm to the clients. They were not in a position to make a complaint to the employer on their own account. On balance, this was one of the rare occasions where it will be acceptable for an onlooker to make a covert recording to ensure that evidence of what was said is accurately captured. While it would have been less intrusive to simply report the incident to the employer, the best way of ensuring the safety of the clients in this instance was to record what was said.

However, I cautioned the employer that such a recording should not generally be seen as acceptable. I recommended that the colleague and other employees should be strongly discouraged from using cellphones to covertly record other conversations in the future.

March 2008

Collection of personal information – unfair means of collection – covert recording of conversation using cellphone – not generally acceptable – serious allegation involving client safety – need for accurate evidence – no interference with privacy but behaviour discouraged – Privacy Act 1993, principle 4