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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:


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


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