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Ben Jones
Ben Jones, UK Lawyer
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I left a Dictaphone recorder (owned by myself) in a café, it

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I left a Dictaphone recorder (owned by myself) in a café, it contained recordings of meetings for my personal use for accuracy of action points etc. I had not requested permission to tape the meeting as it was for personal use and there is no policy at work about it.
The Dictaphone was handed in and my director identified that I was the owner by listening to the tape within a few minutes (confirmed in a statement by him).
However, as it was obvious this was a business meeting, he decided to listen to / transcribe over 3 hrs of tape, from my personal machine without my permission of knowledge.
Did he have the right to do this - there is no policy at work re search etc
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
6 years
Expert:  Ben Jones replied 1 year ago.
There is no automatic right to privacy as such, that does apply in relation to certain monitoring like CCTV surveillance or email monitoring but the law does not specifically cover your situation. Also the employer did not deliberately go and take the item, it was handed to them and they would have had the right to listen to it to determine whose it was and what it was about. If the recordings contained personal data about individuals then there will be issues under the Data Protection Act. By transcribing the contents the employer would be processing the data and needs to adhere to certain data protection principles, such as ensuring it is processed fairly and securely. So they should not distribute it unless necessary. In general, such actions could also amount to a breach of trust and confidence, which is a term implied into every employment relationship. However, a breach of such trust would only give you rights in terms of raising a grievance and eventually – resigning and claiming constructive dismissal. Whether you want to go that far is really down to you but it is a big decision and a risky one so only proceed with it if you believe you cannot continue working there as a result. This is your basic legal position. I have more detailed advice for you in terms of the law on constructive dismissal, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Thank you. As mentioned this could potentially amount to constructive dismissal, which occurs when the following two elements are present:
• Serious breach of contract by the employer; and
• An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.