If you have ever been in the position where you realise that a conversation with a parent or pupil has been recorded without your permission, you are not alone. New research published this week by Impero suggests as many of 15 per cent of teachers have had this happen to them. In our experience as legal advisors to schools, it is becoming increasingly common for parents and pupils alike to covertly record meetings and telephone conversations with teachers, senior leaders and school governors.
Parents who decide to record conversations will usually do so in the context of a complaint, perhaps because they are hoping to obtain some evidence which they think will support their position. In other cases, conversations seem to be covertly recorded when the relationship with the school has broken down and the parent loses trust in school staff.
Such actions inevitably have a detrimental impact on the relationship between schools and families as school staff need to have the space to deal with sensitive and confidential issues without the fear that those conversations will be shared with third parties (including on social media), or taken out of context.
But what’s the legal position?
For data protection purposes, such recordings are likely to fall within the “household exception”, which exempts processing “by an individual in the course of a purely personal or household activity” (therefore the rules are different if a school wishes to record a conversation). However, the legal position might change if the recording is shared with third parties without the other person’s consent, depending on what they do with it.
In some circumstances, there could also be an action for breach of privacy or confidentiality. But in reality, this could be quite difficult for a school to prove. In any case, most schools are understandably reluctant to threaten parents or pupils with legal action.
However, even if a legal remedy is not appropriate, there are some practical steps that schools can take to try to manage these situations.
First, you should remind staff and governors that sometimes parents and pupils record conversations. The idea is not necessarily to make them more guarded; this is unlikely to help relations with families where there are ongoing complaints. Instead, this should act as a general reminder to remain professional and courteous in all communications (which, of course, most staff are anyway).
Schools should also check what, if anything, the complaints policy says about covert recordings. Our template complaints policy includes wording that states that complainants should obtain the informed consent of all parties before recording conversations or meetings, and that the school reserves the right to refuse permission for a complainant to use a recording that has been obtained covertly in the complaints process.
Helpfully, this position is supported by the Department for Education’s best practice guidance for dealing with complaints, though we recommend that each case is considered on its merits if there are compelling reasons to allow a covert recording to be used.
In relation to pupils, school behaviour policies should also make clear that recording staff (or indeed other pupils) without permission is against the school rules, and make provision for a reasonable and proportionate sanction.
Teachers might also be able to address the issue of recording other people without consent in an age-appropriate way in PSHE lessons.
If a member of staff has any concerns about whether a conversation is likely to be recorded, the issue should be addressed at the beginning of the meeting or telephone call. It may not always be practical in a busy school environment, but it’s good practice for another member of staff to attend and take notes.
If a recording obtained without consent is posted on social media, the school should contact the provider and ask for the content to be removed.
Unfortunately, there is no quick fix to stop someone recording school staff without their permission. However, the above steps should help schools to prepare for and navigate the issue in the increasingly likely case that staff find themselves in this situation.