As nearly everyone has smart phones these days, we have seen an increased frequency of cases involving the secret covert recording of a meeting or significant conversation at work by employees. The EAT has now given useful guidance on covert recordings in the recent decision of Phoenix House Ltd v Stockman.
An employment tribunal held that Mrs Stockman was unfairly dismissed. During the proceedings it emerged she had secretly recorded a meeting with the Director of Resources on her smartphone. The tribunal found she had not made the covert recording for entrapment purposes but because she had felt flustered at the time. Notwithstanding that finding, her compensatory award was reduced by 10% to reflect her (poor) conduct. 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:
- 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.
- It cannot be said that covert recording necessarily undermines the trust and confidence between employer and employee. There are a number of reasons for an employee making a recording for example, to keep a record, for protection from misrepresentation or to enable an employee to obtain subsequent advice. There may be pressing circumstances which completely justify making a recording.
- The following are relevant as to whether trust and confidence is breached: the purpose of the recording from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record; the extent of the employee's blameworthiness (e.g. have they been told not to record or lied about making the recording); the subject matter recorded (e.g. is it about the individual employee or other employees or highly confidential business information) and the employee's attitude.
- 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.
This decision means that making a covert recording will not necessarily amount to gross misconduct and all the circumstances of the case as outlined above should be considered. Employers who are concerned about this issue may wish to add covert recording as an example of gross misconduct in their disciplinary procedures and we may see more employers following this approach.
In practical terms, employers should consider making it clear at the start of any meeting that covert recording is not permitted and to ask for confirmation from the employee that they are not making any recording. An employer should also ensure that where an employee is asked to leave a meeting to enable private deliberations or discussions to take place, those involved move to a different room or the employee is asked to remove all their possessions so that no recording equipment can be left e.g. in a bag in the room.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.