In the recent matter of Phoenix House v. Stockman the EAT has clarified the rules on making covert recordings in the workplace. Except in extreme circumstances this will usually amount to misconduct, but rarely will it amount to gross misconduct.
This was a case in which an employee, Mrs. Stockman, had won a Tribunal claim for unfair dismissal. At the hearing it was revealed that she had used her smartphone to make a secret recording of a meeting with her Director of Human Resources. The Tribunal found that this had not been done with the intention of entrapping the Director but because she had felt flustered. This was considered poor conduct and her compensation reduced by 10%.
Phoenix House appealed to the EAT arguing that making the recording was grounds for a gross misconduct dismissal, for which no compensation was payable. The EAT pointed out that Phoenix House’s disciplinary policy made no mention of covert recordings, agreed that the recording had not been made with the intention of entrapment, and found that the meeting in question was, in any case, a personal one not related to confidential business information.
Considering the likelihood of fair dismissal had the employer known of the recording to be very low, the EAT likewise found against Phoenix House.
The advice of the EAT was that making a secret recording of a meeting would usually amount to misconduct, but would not necessarily undermine the trust relationship between an employer and employee to such an extent that the employer had the right to dismiss.
Tribunals need to examine why a recording was made and specifically whether there was malicious intent. An employee making a covert recording could, in most cases, be accused of poor conduct. However, even if the employee has been told not to do so there may be mitigating circumstances that led them to act without due thought.
The EAT also pointed out that the type of meeting being recorded was of importance, since in a disciplinary meeting a written record would be kept in any case which, if kept accurately, would not be at odds with the recording. It was a different matter if the meeting related to highly confidential business where no written record was kept.
There may, in fact, be good value in both parties agreeing to record a disciplinary meeting, and communication about this in advance should certainly be encouraged.
This ruling invites employers to consider whether or not they are happy for employees to record meetings. The potential benefits of doing so should be considered, but if the employer is still unhappy with the idea then their Disciplinary Policy should include a note warning against this and an explanation of the consequences. This should be explained again at the outset of any investigation, disciplinary or grievance procedure and the employee should be asked for official confirmation that they have understood this and are not recording. As an additional precaution employees might be asked to leave their personal belongings outside the room in which the meeting is to take place, and any deliberations by the representatives of the employer could take place elsewhere.
If, even after all of those precautions, an employee still makes a recording then they will undermine themselves and the employer should be adequately protected at a Tribunal.
