Two common questions we often get asked are:
Can an employee make a covert recording at work? If so, would this amount to misconduct?
A recent case in the Employment Appeals Tribunal (EAT), Phoenix House v Stockman has decided that it would be misconduct for an employee to make a covert recording at work “except in the most pressing of circumstances.”
In this particular case, Mrs Stockman worked as a financial accountant for a charity. She complained of unfair treatment during a restructuring process and, while talking to HR she covertly recorded the meeting. This fact was only disclosed during her successful unfair dismissal claim.
The Respondent employer contended that the Claimant’s compensation for unfair dismissal should be reduced, on a just and equitable basis and under the Polkey principle to reflect her pre-dismissal conduct in making a covert recording which they considered amounted to misconduct in itself. The Employment Tribunal did not agree.
The Employment Appeals Tribunal held that the Employment Tribunal was entitled to come to its conclusion on the facts and it did not err in law when making a finding of a successful unfair dismissal.
The Respondent employer argued that Mrs Stockman’s conduct in making the covert recording meant she had breached the implied term of trust and confidence.
The EAT, recognised the ease with which meetings can now be covertly recorded and said that, in its collective experience, it is not uncommon to find an employee has recorded a meeting without saying so. Such recordings are not necessarily undertaken to entrap or gain a dishonest advantage said the EAT. A recording may have been done to keep a record or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation, or to enable the employee to obtain advice from a union or elsewhere.
An Employment Tribunal is not bound to find that such a covert recording necessarily undermines trust and confidence; it depends very much on the fact situation. However, the EAT did state that it ‘considered it good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances – and it will generally amount to misconduct not to do so’.
The factors to be considered when assessing whether a covert recording breaches the trust and confidence term include:
the purpose of the recording: is this a manipulative employee trying to entrap the employer or a confused and vulnerable employee who wants to keep a record and guard against misrepresentation?
the blameworthiness of the employee: is this an employee who’s been specifically told that a recording must not be made and then lied about it or an inexperienced or distressed employee who has scarcely thought about what he or she is doing?
what has been recorded: is it a meeting where a record would normally be kept and shared or one where highly confidential or personal information relating to the employer or another employee is discussed
Disciplinary, poor performance, grievance and dismissal meetings (and associated discussions) are the main targets for covert recordings by employees. Typically, a reason for recording the meeting will be to obtain an accurate record of what was said. In practice, we find however that covert recordings vary from attempting entrapment to guarding against misrepresentation. The nature of what is recorded can also be relevant for varying from a meeting where a record is normally kept, to highly confidential or sensitive information relating to the business or other people.
In practice, many disciplinary procedures fail to list covert recording as an example for gross misconduct. This is something going forward that employers may wish to address in their employment Policies and Staff Handbooks.
Farleys Solicitors LLP specialise in commercial employment law for businesses. Our team can provide advice and support on employee exits, settlement agreements, contracts of employment, staff handbooks, directors service agreements, apprentices, equal pay, holiday pay, recruitment, restructures, disciplinaries, grievances, discrimination and whistleblowing disputes; and Employment Tribunal defence and representation.
If you require any assistance with any of the above please contact Farleys Employment Law & HR team on 0845 287 0939 or email us your enquiry today.
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