Can a Call Recording Made by a Customer be Used Against Me?

Background

I worked in a call centre for more then 5 years and never had any problems or issues either with my employer or any of the customers.  My employer then received part of an individual recording of a telephone conversation from a customer who made a complaint against me.

My employer does not have their own recordings to verify the individual customer recording.   The customer was racially abusive and he recorded my reply to his racial provocation and I believe, edited the recording that he then submitted.

The beginning of his telephone call recording is missing.  He informed me at the end of the call that he had recorded the call.  My employer is only interested in what the customer is saying and is using the customer’s recording as sole evidence against me.

The allegation made during the disciplinary action is that I was ”rude”.  I did not use any offensive language or swear despite the fact that I have received racial abuse at my place of work in the past which I reported to my employer before this incident.

My understanding under the Regulation of Investigatory Powers Act 2000 (RIPA), is that it is not illegal for individual customers  to record conversations, providing the recording is for their own personal use.  If a person intends to make the conversation available to a third party, they must obtain the consent of the person being recorded. In  my case this was not done.

I gave my employer consent to monitor and record my calls for training and quality purposes including the possibility of using this as evidence. I would not mind if my employer used their own recordings.   Data protection policies should prevent any data including telephone recordings to be manipulated, disrupted, edited etc.  My Company is registered for Data Protection, whereas, an individual is not registered for data protection and I do not feel that I am protected in such circumstances.

I feel let down by my employer as their recording would have been evidence of the racial abuse aimed at me.

I asked my employer to allow me access to the customer’s call recording and the investigatory notes, but they are not forthcoming.  I am thinking to now request this information under the Data Protection Act and Freedom of Information Act.

My questions to you are:

1. Can they use this recording as sole evidence?
2. Can my employer refuse to give me a copy of the evidence?
3. Do I have a right to a fair trial in any justice system including company disciplinary proceedings?

Your Employer Must Make it Available to you

If your employer is using any evidence as part of a disciplinary process then they must make it available to you. It seems strange to me that if the organisation has the call recorded via their own equipment that they want to rely on a recording furnished by a customer. As for a ‘fair trial’ your organisation, if in the UK, must follow laid down legal procedures for dealing with disciplinary issues. I suggest you seek out a copy of the organisation’s disciplinary policy, failing that consult the following website http://www.acas.org.uk.

Thanks to Sean. 

You are Entitled to Request Access to any Data That is Held Against you

I think under the Data Protection Act you are entitled to request access to any data that is held against you. I would put in a formal request for access to the voice recording in question.

Thanks to Michael

Extra answers

1. Can they use this recording as sole evidence? Ofcom require companies to advise customers that calls are being recorded and what purpose the recording will be used for. Likewise if a customer is recording you, they have to tell you and advise you to what purpose they will use the recording. If in this case, you did not give your permission for the call to be recorded, it cannot be submitted as evidence against you and should not be used by your employer. It certainly should not be the sole evidence in any case against you. The Lawful Business Practices makes allowance for call recordings without a requirement to notify the customer but this is only in cases where the recording is being used to evidence a contract.
2. Can my employer refuse to give me a copy of the evidence? No, but it depends on what procedures are being taken against you as to when you are legally entitled to have copies of the evidence against you.
3. Do I have a right to a fair trial in any justice system including company disciplinary proceedings? Absolutely, but it depends how far things get. If you employer decides that dismissal is the eventual outcome then you can take them to a tribunal.

In answer to the question posed. There are no legal parameters around call timings set for outbound calls from a call centre. The Direct Marketing Association requires it’s members to adhere to their guidelines for marketing calls which are in brief ‘no calls before 9am and after 9pm’ but if the company who calls you is not a member then there is no obligation for them to abide by these guidelines.

Answer thanks to Janette Coulthard. 

Click here for our Data Protection Act and Call Recording Laws in the UK

Author: Jo Robinson