The Employment Appeal Tribunal has ruled that covert recording by an employee will not always be a breach of the implied duty of trust and confidence. It will normally amount to misconduct, but will not automatically be gross misconduct justifying dismissal. Relevant factors will include the purpose of the recording, which “may vary widely 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”. It might also be that an employee wishes to conceal a disability which makes it difficult for them to accurately recall conversations. Whether the employee has contravened an express instruction not to record or lied about doing so will also be relevant, as will the subject-matter of the recording. If highly confidential information or personal information relating to another employee is discussed, this is more likely to involve a breach than where the discussion relates to matters concerning the employee of which a note would normally be kept and shared. Finally, “any evidence of the attitude of the employer to such conduct” will be relevant, including whether and how the issue is addressed in any disciplinary policy.

The EAT also commented that it is good practice to discuss at the start of a meeting whether it would be desirable to record it, noting that sometimes recording will inhibit a frank exchange of views and that, for long meetings, a summary or note will be of more value.

Employers may wish to review their approach to this issue and ensure that disciplinary policies make clear whether recording carried out covertly or without express written consent amounts to gross misconduct. It would also be prudent to ensure managers state at the beginning of any investigatory, disciplinary or grievance hearing if recording is not permitted and ask the employee to confirm they are not doing so; where a meeting is adjourned for the panel’s private deliberations to continue, managers should check that the employee has not left any possessions in the room. (Phoenix House Ltd v Stockman)

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