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Is It Misconduct to Make Covert Recordings at Work?

on Friday, 19 July 2019.

It is likely to be, except in the most pressing circumstances, held the Employment Appeal Tribunal (EAT) in Phoenix House Limited v Mrs Stockman.

The EAT further confirmed that whether doing so could amount to gross misconduct will depend on an assessment of all the circumstances and provided some helpful guidance on the issue.

The Facts in More Detail

In this case, Mrs Stockman worked as a financial accountant at Phoenix House Limited (Phoenix House). During the course of a restructuring process, she complained to a colleague that the restructure process had been biased against her. Her line managers met with her colleague and Mrs Stockman interrupted their meeting to find out what was being discussed, and refused to leave when asked. Following this, Mrs Stockman was invited to attend a meeting with the Head of HR, at which she was told she would be disciplined for that conduct. She secretly recorded the meeting. This fact became apparent during her subsequent tribunal claim of unfair dismissal - which was successful.

The Employment Tribunal (ET) found that Mrs Stockman did not make the recording for entrapment purposes, but because she was flustered at the time. The ET also noted that Mrs Stockman did not make any use of the recording as part of the internal proceedings with Phoenix House. Taking into account her conduct in making a covert recording of the meeting without her employer's consent, the ET reduced her unfair dismissal compensatory award by 10%.

Phoenix House appealed the ET's decision, arguing that had it known about the recording (at the time of dismissal) it would have dismissed Mrs Stockman for gross misconduct. Therefore, it was not just and equitable for the ET to make any award and her compensation should be reduced to zero.

Phoenix House argued that Mrs Stockman's conduct of secretly recording the meeting was a breach of the implied term of mutual trust and confidence.

The Employment Appeal Tribunal's Decision

The Employment Appeal Tribunal (EAT) dismissed the appeal. It noted that whilst it will generally amount to misconduct not to inform the employer that a recording is being made, it was relatively rare for the covert recording of meetings to be listed as an example of gross misconduct in a disciplinary policy - although the EAT noted this may soon change. It also noted that covert recording could not necessarily be said to undermine the relationship of mutual trust and confidence between employer and employee. This will depend on the particular circumstances.

Relevant factors when assessing whether a covert recording breaches the implied term of trust and confidence are:

  • The purpose of the recording: whether this is a manipulative employee seeking to entrap the employer or a confused and vulnerable employee seeking to keep a record or guard themselves against misrepresentation.
  • The blameworthiness of the employee: whether this is an employee who was specifically told not to make a recording or has lied about making a recording, or an inexperienced or distressed employee who has scarcely thought about the criminality of making such a recording.
  • The contents of the recording: whether this is a meeting concerned with the employee where a record would be kept and shared in any event or a meeting where highly confidential business or personal information relating to the employer or another employee is being discussed.
  • The attitude of the employer to such conduct: for instance, whether covert recording is given as an example of gross misconduct in the employer's disciplinary policy.

In the present case, the EAT found that the making of a covert recording was not set out specifically in Phoenix House's disciplinary policy as amounting to gross misconduct. Furthermore, Mrs Stockman had not recorded the meeting with the intention of entrapment - this was a meeting concerned with her own position rather than the confidential information of the business or other individuals.

Best Practice

Employers who want to ensure that recording without consent is prohibited should (as suggested by the EAT) consider reviewing their disciplinary procedure to include the covert recording of meetings to the list of examples of gross misconduct. It is also sensible for employers to make clear at the start of disciplinary or grievance hearings that recordings of the meeting are prohibited.

It is important to note that even if a covert recording amounts to gross misconduct, the contents of the recording may still be disclosable as evidence in a tribunal. Therefore, those involved in conducting disciplinary and grievance hearings should always ensure they conduct themselves in a manner that would be considered to be reasonable by a tribunal.


For more information, please contact Ellie Boyd in our Employment Law team on 020 7665 0940, or complete the form below.

 

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