Workplace investigations and disciplinary interviews are a standard part of managing a team. But have you ever wondered what the legal reality is if an employee secretly records the entire meeting? As an employer, it is vital to know where you stand.
Admissibility of Covert Recordings
First, it is important to understand that covert recording is not a criminal offence in Hong Kong. The court — especially at the Labour Tribunal level — generally accepts these recordings as evidence as long as the content is relevant to the dispute.
Employer’s Control and Disciplinary Grounds
However, this does not mean employers have no way to control such conduct. First, if your company has a clear policy or if you give a direct instruction that recording is not allowed, a secret recording is a breach of policy and a failure to follow reasonable instructions. Second, under the PDPO, recording someone without their knowledge may amount to “unfair collection” of personal data. Both of these provide legitimate grounds for disciplinary action.
Threshold for Summary Dismissal
The question then arises: can you summarily dismiss an employee for this? In Hong Kong, this depends on whether the act destroys the mutual trust and confidence between the parties. The court will look at the circumstances, and a recording made to “entrap” a manager is viewed much more seriously than one made by a vulnerable employee seeking to guard against misrepresentation. Because every case is different, secret recording is not an automatic green light for summary dismissal.
Key Takeaways
To protect their position, employers should update their staff handbook to explicitly prohibit unauthorised recordings, and remind participants at the start of each interview that no recording is allowed.
🔍 Watch the video now to learn how to update your staff handbooks effectively and discover the best practices for protecting your organisation during sensitive workplace interviews!
