The rapid advancement of technology has changed the workplace in many ways, making communication easier and remote work more accessible. However, these changes have also introduced legal challenges, particularly around workplace recording.

With smartphones and other recording devices readily available, employees can now record conversations, capture sensitive information, and share data without prior consent. This raises important questions for employers:

• Can employees legally record conversations at work?
• What can employers do if they discover unauthorized recordings?
• Can an employee be terminated for recording in the workplace?

This article explores the legal aspects of workplace recording in Ontario and guides employers.

Is It Legal for Employees to Record in the Workplace?

Under Section 184 of the Criminal Code of Canada, recording a conversation without the consent of at least one party involved is generally prohibited. This is known as the “one-party consent rule.”

This means that an employee can legally record a conversation if they are an active participant in it. For example, an employee may record a meeting with their manager without obtaining further consent. However, recording private conversations between colleagues without permission is not allowed and could be a violation of privacy laws.

Workplace Privacy Considerations

The key issue is an expectation of privacy. Employees should not assume that all workplace conversations can be recorded without consequences. While one-party consent makes certain recordings legal, they may still violate workplace policies or breach privacy laws depending on the context.

For example:

• Recording a meeting with a manager: Likely permitted under the one-party consent rule.
• Recording a private conversation between colleagues without consent: Could violate privacy rights and workplace policies.
• Recording confidential business discussions: Could result in legal or disciplinary action if it breaches confidentiality agreements.

Employers concerned about workplace recordings should implement clear policies and educate employees about privacy expectations.

Can Employers Terminate Employees for Unauthorized Recording?

Employers in Ontario can terminate employees with or without cause. However, terminating an employee for just cause requires serious misconduct that fundamentally breaks the employment relationship.

Unauthorized recording in the workplace may justify termination for cause, especially if:

• The recording violates company policies.
• The employee records confidential or sensitive information.
• The recording is used maliciously or damages workplace trust.

To support a just cause termination, employers should:

1. Have a clear workplace policy prohibiting unauthorized recordings.
2. Ensure employees understand the policy through training and written documentation.
3. Consistently enforce the policy across all employees.

If an employer terminates an employee without cause, they must provide proper notice or severance pay in accordance with Ontario’s employment laws.

Legal Actions for Unauthorized Workplace Recordings

If an employee secretly records someone without their consent, the affected party may have legal options, including:

1. Filing a criminal complaint: Under the Criminal Code, secretly recording a conversation without consent (where one-party consent is not met) can be a criminal offence.
2. Pursuing a civil lawsuit: The recorded individual may file a lawsuit under the tort of intrusion upon seclusion, which applies when someone intentionally violates another person’s privacy.

To succeed in an intrusion upon seclusion claim, the affected party must prove:

• The recording was intentional or reckless.
• It intruded into private matters.
• A reasonable person would find the intrusion highly offensive.

How Employers Can Protect Their Workplace

Employers can take proactive steps to reduce the risk of unauthorized recordings:

• Implement a workplace recording policy: Clearly outline that unauthorized recording is not permitted and explain the consequences.
• Educate employees: Make sure employees understand the privacy expectations and legal implications of recording at work.
• Take legal action if necessary: If an employee records private or confidential conversations without permission, consult an employment lawyer to assess the appropriate legal response.

Contact Achkar Law

If you are dealing with workplace recording issues, our employment lawyers can help. Whether you need legal advice on implementing workplace policies or taking action against unauthorized recordings, Achkar Law is here to assist.

Contact us today for guidance on protecting your organization’s privacy and legal rights.

You can contact us by phone toll-free at 1 (800) 771-7882.