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18 October 2019

196: Appeal court guidance on covert recording of meetings by employees

When an employee secretly records an internal meeting or hearing, the general rule is that the recording of any parts of the meeting where the employee was present may be admissible before an Employment Tribunal if the Tribunal believes it is relevant. However, covertly recording a meeting may amount to misconduct, depending on the employer’s disciplinary rules and procedures. In the recent case of Phoenix House Ltd v Stockman, the EAT has given useful guidance on when covert recordings will amount to gross misconduct.

The Employment Tribunal held that Ms Stockman had been unfairly dismissed. During the Tribunal proceedings, it had emerged that she had secretly recorded a meeting with HR on her smartphone. The Tribunal found that she had not made the covert recording for entrapment purposes, but because she had felt flustered at the time. Her compensatory award was reduced by 10% to reflect her poor conduct. The company appealed against the Tribunal’s approach on the basis that had it known about the recording, it would have dismissed her for gross misconduct and that therefore her compensation should have been reduced to nil.

The EAT dismissed this appeal, finding that there was only a very low likelihood that Ms Stockman would have been fairly dismissed if Phoenix House had known about the recording. The company’s disciplinary policy did not refer to covert recording as an example of gross misconduct, and the Tribunal had been entitled to find that she had not recorded the meeting with the intention of entrapment. It was a single meeting concerning Ms Stockman’s own position rather than confidential business information.

The EAT also gave the following general guidance:

  • it remains good practice for parties to communicate an intention to record a meeting, and it would generally amount to misconduct not to do so, but it is still relatively rare for covert recording to be included on a list of examples of gross misconduct;
  • covertly recording a meeting does not necessarily undermine trust and confidence between employer and employee. Recordings might be made for a variety of reasons; for example, to keep a record, to protect the employee from misrepresentation, or to enable an employee to obtain subsequent legal advice; and
  • in considering whether the duty of trust and confidence has been breached, relevant factors include: the purpose of the recording, the subject matter recorded, the extent of the employee’s attitude and blameworthiness, and evidence of the employer’s attitude to such conduct.

Given that most people have smartphones, it is unsurprising that there has been an increase in cases involving covert recordings. This case illustrates that whether a covert recording will amount to gross misconduct will depend on all the circumstances of the case, in particular, the factors outlined by the EAT. It is also a reminder to review policies and procedures to ensure that the risk of employees making secret recordings is minimised, for example, by expressly including covert recording in the list of examples of gross misconduct, by stating at the start of meetings that recordings are not permitted, and by asking employees to confirm that they are not making a recording.

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