Employment Insight: Can covert recordings made by employees amount to gross misconduct?

Yes, held the Employment Appeal Tribunal (EAT) in the recent case of Phoenix House Ltd v Stockman UKEAT/0284/17. But that won’t necessarily be the case – all of the circumstances need to be taken into account, including the employee’s motivation for making the recording.

Services
Employment
Type
Update

Background

Mrs Stockman was employed by Phoenix House, a charity, as a financial accountant. Following a restructure, in which Mrs Stockman’s position was deleted, she accepted a more junior role. Mrs Stockman complained that the Finance Director had treated her differently and that the restructure was biased against her. The Finance Director met with colleagues to discuss the matter. However, Mrs Stockman interrupted the meeting, forcefully demanding to know what the conversation was about, and refused to leave (several times). Later that day, she was invited to a meeting with HR. It was this meeting that she covertly recorded (although this only came to light during her subsequent Employment Tribunal claim).

EAT decision

Mrs Stockman brought a successful unfair dismissal claim. However, her compensation was reduced due to her misconduct – including in relation to the covert recording (for which a 10% reduction was applied). The employer argued before the EAT that Mrs Stockman’s compensation should have been reduced to nil because making a covert recording was necessarily a breach of trust and confidence. The EAT disagreed.

It noted that there was a time when employees would have had to go to great lengths to covertly record a meeting. It would therefore have been easy to conclude that by doing so, they had a dishonest motive (for example, entrapment or to gain some other unfair advantage over the employer). Nowadays, however, most people carry a mobile phone capable of easily (and discreetly) making a recording. An employee’s motives for doing so may not necessarily be dishonest – it may be done, for example, to keep a record, to protect the employee from misrepresentation, or to assist the employee in taking advice.

The EAT went on to give some guidance as to factors that may be relevant:

1. The purpose of the recording

On the one hand, you may have a highly manipulative employee seeking to entrap the employer. On the other, it may be a confused and vulnerable employee seeking to keep a record or guard against a conversation being misrepresented.

2. The blameworthiness of the employee

The employee may have been specifically told not to record the meeting, or they may have lied about making the recording. On the other hand, it may be an inexperienced or distressed employee who has not considered the implications of making such a recording.

3. What information is being recorded

The recording could be of highly confidential business or personal information. On the other hand, it could be a recording of a meeting where a record would be kept and shared with the employee in any event.

4. Any evidence of the employer’s attitude towards such recordings

Here the EAT noted that it is still relatively rare for employers to list covert recording as an example of gross misconduct in their disciplinary policies – however, no doubt more employers will want to do so following this judgment.

The EAT held that the Tribunal had been entitled to find that Mrs Stockman had not recorded the meeting with the intention of entrapment and was entitled to take the approach it did in assessing the appropriate reduction in her compensation.

Comment

The EAT noted that generally it is always good practice for employers and employees to say if they intend to record a meeting – and generally it will amount to misconduct not to do so. But it won’t necessarily amount to gross misconduct – that will depend on all of the circumstances.

Employers may therefore want to remind employees, at the beginning of any disciplinary or other potentially contentious meeting, that they should not record the meeting without permission – and that doing so is likely to amount to misconduct.

That being said, as HR professionals (and others) will be well aware, you can never be entirely sure that a meeting is not being recorded. It remains the case that Employment Tribunals will normally admit covert recordings into evidence if they are relevant – regardless of the circumstances in which they have been obtained. Employers are therefore well advised to assume that they may be being recorded in disciplinary meetings etc. and avoid any unguarded comments that might cause embarrassment if they came up in evidence in the Employment Tribunal!


All content on this page is correct as of July 12, 2019.