With the prevalence of smartphones in the workplace, it is more and more common for employees to use their mobile devices to secretly record conversations with their co-workers or supervisors.

But is it legal to secretly record a conversation in the workplace?

The short answer is yes, you can legally record a conversation in the workplace even if you are doing so in secret, however, you must be a participant in the conversation. It is a criminal offence to leave a recording device in a room to capture conversations of third parties without their knowledge.

Even if you are not breaking any laws, is secretly recording your colleagues a good idea?

Surreptitious recordings can be a valuable resource.

For example, audio recordings can be a reliable way to capture evidence of contentious work-related disputes. Recordings capture not only the words spoken, but the tone, demeanour, and interaction of the parties in ways that notes or emails cannot. Recordings are also generally a much more reliable method of accurately documenting conversations and events occurring in the workplace.

However, even if you are not breaking any laws by secretly recording your conversations, it may not be a good idea. In the case of Hart v. Parrish & Heimbecker, Limited, 2017 MBQB 68 (CanLII), the Manitoba Court of Queen’s Bench ruled that an employee’s “misuse” of his cell phone to secretly record meetings with his superiors amounted to a “breach” of his personal code of conduct as well as his confidentiality and privacy obligations to the employer.

The court did not ultimately decide as to whether the employee’s secret recordings amounted to just cause for dismissal. However, the employee’s secret recordings, which the employee admitted as evidence to help him in his wrongful dismissal lawsuit, did not end up helping him at all.

In fact, in this case secretly recording conversations resulted in negative findings against the employee by the trial judge. And while it remains unclear what role (if any) the secret recordings had in his case, he ultimately lost his lawsuit.

While the practice of secretly recording conversations may be frowned upon in certain workplace contexts, there are many circumstances in which a surreptitious recording of a workplace conversation may be justified, particularly if there is a loss of trust, misconduct, or other issues occurring in the employment relationship.

If the employer has clear policies prohibiting the practice of surreptitious recordings, employees should generally exercise caution when recording conversations in the workplace without the other person’s knowledge or consent. Absent a compelling reason to justify the practice, a contravention of the employer’s policy may justify disciplinary sanction up to and including dismissal.

Because the legality of recording conversations is often context-dependent, we recommend that you speak to an employment lawyer about your workplace rights and obligations before you hit the record button. Contact us at JPAK Employment Lawyers today.

Based out of Toronto, our office serves clients in the GTA and throughout Ontario.