Surely this is a matter of fairness and reasonable expectation?
Firstly we should note that there is technically no such thing as "domestic purposes" - the title of s36 is not part of the definition
On the technical point I agree that the however disclosure by the recorder will normally be exempt under s36 in the examples quoted - it is for personal or household matters. There may be some disclosures which fall outside e.g. with the sole purpose of getting employee dismissed, but in reality nothing turns on that. ICO is unlikely to prosecute under s21 and recorder will likely have a legitimate interest condition (unless libelous in which case all bets off). S17 breach is a flimsy basis for a compensation claim against the recorder although it would be a P1 breach (unlawful).
However use of the recording by the employer is clearly the real issue. I also agree s36 will not apply here at all but save in the most isolated of cases there will be a condition 6 legitimate interest. The problem then becomes fairness and possibly unwarranted prejudice.
As Tim points out such activities are generally common these days. The NHS generally has an enlightened approach to this - at least in places I have been involved, and secret recording has been a big issue in e.g. care home cases.
The key surely for any employer to avoid these issues is staff awareness. If nothing else staff need to know how to react when the recording is not covert. Policies, training, staff literature and guidance should draw attention to the issue and make it clear that in appropriate cases employer will take into account the content of such recordings when submitted. This should satisfy any P1 fairness issues and exemptions become irrelevant. If recordings are given appropriate weight (including taking into account any covert nature) there should be no unwarranted prejudice.
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
All archives of messages are stored permanently and are
available to the world wide web community at large at
http://www.jiscmail.ac.uk/lists/data-protection.html
If you wish to leave this list please send the command
leave data-protection to [log in to unmask]
All user commands can be found at http://www.jiscmail.ac.uk/help/commandref.htm
Any queries about sending or receiving messages please send to the list owner
[log in to unmask]
Full help Desk - please email [log in to unmask] describing your needs
To receive these emails in HTML format send the command:
SET data-protection HTML to [log in to unmask]
(all commands go to [log in to unmask] not the list please)
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
|