Is recording workplace conversations ethical?

The expulsion of the former attorney general, Jody Wilson-Raybould, from the Liberal party caucus has generated a national debate about workplace behaviour.

What the prime minister described as “unconscionable” was Wilson-Raybould’s decision to release a secret recording she had made with Privy Council clerk Michael Wernick when they discussed a proposed deferred prosecution agreement for engineering giant SNC-Lavalin.

The secret recording created a firestorm and raised questions about what can and cannot be done in the context of workplace interactions and what privacy rights people have when interacting with fellow employees.

The discussions are of particular interest as Wilson-Raybould was not an ordinary employee, she was the country’s top lawyer. As such, was the taping of Wernick legal or, for that matter, ethical in the circumstances?

In general, Canadians appear surprised by the action of Wilson-Raybould.

Yet, despite its extraordinary nature, taping of conversations in the workplace are becoming more frequent. Many employees are resorting to such actions because they believe it is the best method to prove perceived impropriety and safeguard themselves against unfair consequences.

In an era where mass media justice is almost as important as the truth, people feel pressured to get their side of the story out first to control the narrative. Is taping without consent legal? Wilson-Raybould’s actions raise the question whether it is legal to tape a conversation without the consent of the other party. Canada is a “single party consent” jurisdiction. This means individuals may record their own conversations without the knowledge of other participants. As long as one of the individuals taking part in the conversation consents to it being recorded, then it is legal.

However, Wilson-Raybould was not just an employee. She is a lawyer by trade and at the time of the recording, she was the attorney general of Canada. Practicing lawyers are exempt from the single party consent rule in their professional lives. The Rules of Professional Conduct in the various provinces prohibit lawyers from the use of any device to record a conversation with a client or another legal practitioner without first obtaining consent of all the parties participating in the conversation. In this case, most likely, Wilson-Raybould was not bound by any profession rules and as such, the taping was not illegal. Was the taping ethical? While there may be no issues legally, when it comes to ethical considerations, Wilson-Raybould has a much weaker case. As attorney general, she would have been involved in highly sensitive conversations with work colleagues on a regular basis. We have to ask, is it good for the country and democracy that this type of interaction be secretly recorded? Are there risks that this could become a regular occurrence? While some may argue the political fallout proves Wilson-Raybould had justifiable concerns, the breakdown in trust is troubling. Privacy laws Canadians need to be aware that taping conversations or monitoring of emails and voice mails is a real phenomenon in Canadian workplaces. Nevertheless, federal privacy legislation requires consent for the collection, use and disclosure of employees personal information. There are various provincial privacy legislations that also require the same. As such, both employees and employers should proceed with caution in taping workplace conversations and interactions. This also applies to opening mail, snooping in confidential files and financial information and disseminating unauthorized cellphone videos and tapes of co-workers in what are deemed to be private activities.

Despite the efforts by lawmakers to protect individual privacy, employment lawyers are seeing more and more clients who record workplace interactions. Most of the time, they argue such a move was the only recourse to protect themselves against a colleague or supervisor who had put them in a “vulnerable” position.

If employees begin to believe any conversation with a colleague could be taped and distributed, there is a heightened risk that any trust within the workplace will be eroded and create a fractured work environment. Workplace taping is typically rooted in perceived experiences of bullying, harassment and discrimination and, as such, we need to focus this national discussion of how we address the underlying factors that lead to taping workplace interactions.

Soma Ray-Ellis is a partner and chair of the employment and labour group at Gardiner Roberts LLP.