Following Labor Dispute (B-S) 11761-03-15 Livnat Hazan versus the Mizpe Ramon Local Council (July 5, 2015) (“the Hazan Case”), Request for Permission to Appeal 4550/15 Haya Ofra Shmueli versus the State of Israel (July 6, 2015) (“the Shmueli Case”). The phenomenon of employees secretly recording their superiors and colleagues has become widespread. The reasons are varied: the employees may be involved in a crisis, may be preparing a lawsuit, or may be recording “just in case” – with no immediate reason. Often, such employees act upon legal counsel that the recording of a conversation in which they participate does not constitute a criminal offense and that the contents of the recording shall be valid as evidence in case the dispute ends up in court. However, the lawfulness of hidden recordings and their validity as evidence do not reflect the whole picture, which includes aspects of inappropriate conduct on part of the employees that may amount to dishonesty and breach of faith. Indeed, when a court restricts its judicial examination to the criminal aspect of the hidden recording and to the validity of the hidden recording as evidence, it may convey the impression that secret recordings are not reprehensible. This, of course, is not the case, and secret recordings have the same effect of polluting the workplace as other inappropriate conduct. Recently, two important rulings were given, one by the Supreme Court (honorable Justice A. Rubinstein in the Shmueli Case) and the other by the Regional Labor Court (honorable Justice Y. Cohen in the Hazan Case), in which the courts made clear and unequivocal statements defining secret recordings by employees as a breach of trust and as a breach of discipline that may justify taking disciplinary measures up to dismissal and may also affect the remedies to which the employee who has made the hidden recording may otherwise have been entitled. Although both of these cases involved employees in the civil service, these judicial statements are equally valid with respect to employees in the private sector. Hopefully, these rulings will bring about a change in conduct and minimize, if not end, the phenomenon of routine secret recordings by employees of their superiors and colleagues. There are extreme cases in which employees may be driven to make secret recordings such as cases of harassment or corruption in the workplace. Indeed, the border between prohibited and permissible conduct in this respect has not yet been delineated and awaits further case law development. However, in the meantime, employees should know that apart from extreme cases, hidden recordings are unacceptable and incompatible with continued employment relations.
Shoshana Gavish is a partner at S. Horowitz & Co., where she heads the firm’s Employment Law Practice Group. Practicing exclusively in the areas of private, public and international employment law, Shoshana advises on all aspects of the employer-employee relationship, including hiring and termination policies, individual contracts, employee benefit and compensation packages, restrictive covenants and confidentiality agreements, collective bargaining agreements, individual and collective disputes and class actions.