Case Update (3): Guidance on Covert Recordings

Summary: Is it misconduct for an employee to make a covert recording at work?

Yes, except in the most pressing of circumstances, held the EAT in Phoenix House v Stockman available here.

Facts:  The employee, Mrs Stockman, brought a successful claim in the Employment Tribunal for unfair dismissal.   During the Tribunal proceedings it emerged that Mrs Stockman had secretly recorded a meeting with the Director of Human Resources on her smartphone.

The Tribunal found that Mrs Stockman had not made the covert recording to catch out or trap the Director of Human Resources, but because she had felt flustered at the time.  Notwithstanding that finding, Mrs Stockman’s compensatory award was reduced by 10% to reflect her (poor) conduct.  The employer, Phoenix House, appealed against the Tribunal’s approach on the basis that had it known about the recording it would have dismissed her for gross misconduct (breach of the implied term of trust and confidence) and therefore compensation should be reduced to nil.

The EAT dismissed the appeal.  The EAT held that the Tribunal had been entitled to find that the likelihood of Ms Stockman having been both dismissed and fairly dismissed had Phoenix House known about the recording was very low.  The disciplinary policy of Phoenix House did not refer to covert recording as an example of gross misconduct.  She had not recorded the meeting with the intention of entrapment.  It was a single meeting concerned with her own position rather than the confidential information of the business.

The EAT also gave the following helpful guidance:

  • Secretly recording a meeting will not automatically undermine the trust and confidence between an employer and employee giving the employer the right to dismiss, but it will, usually, amount to misconduct;
  • A Tribunal should look at the reasons why the recording was made. These might range ‘from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation’. If an employee has been told not to record a meeting, then their conduct is more likely to be poor.  However, they may have recorded it without giving thought to the blameworthiness of doing so, or there may be pressing circumstances which completely justify making a recording.
  • What is recorded is also important. There is a difference between recording disciplinary/grievance hearings – where written records will be created anyway – and those where highly confidential information about the business or others are discussed.
  • The employer and employee should consider whether it is desirable to record a meeting as there can be benefits but it can also inhibit a frank exchange of views. A written summary may be more valuable where a meeting is long.
  • It remains good practice for the parties to communicate an intention to record a meeting and it would generally amount to misconduct not to do so, but it is currently relatively rare for covert recording to appear on a list of examples of gross misconduct in a disciplinary procedure.

 

Implications: This is useful guidance from the EAT and the following practical points can be summarised for employers:

  • Consider if you are happy to allow your staff to record hearings (and there are some benefits in doing so such as avoiding misunderstandings, proof of good practice etc.).
  • If you are not happy, make it clear in your Disciplinary Policy that anyone who secretly records a meeting etc. is likely to be guilty of serious misconduct and may be dismissed without notice.
  • At the beginning of any investigatory, disciplinary or grievance hearing explain to the employee that you do not permit them to record the hearing and ask them to confirm they are not doing so.
  • Ask the manager or panel to deliberate in a different room. If this is not possible, ask the employee to wait outside and make sure they remove all of their possessions.
  • If the employee disobeys your clear instructions and records the hearing you will be able to use this undermine their credibility and reduce any award made by a Tribunal.