Covert Recordings made by an employee

Covert Recordings made by an employee

Phoenix House (the Employer) v Stockman (the Employee)

This UK case is interesting for the tribunals comments on covert recordings.

The Employee worked as a financial accountant for the Employer. She complained of unfair treatment during a restructuring process and, while talking to HR covertly recorded the meeting. The fact the Employee had recorded the meeting was only disclosed during her successful unfair dismissal claim, and not when she was dismissed. The Employer appealed the tribunal decision, in respect of the level of compensation awarded to the Employee. The Employer noted that had it been aware of the recording it would have dismissed the Employee for gross misconduct and that it was not just or equitable for the tribunal to make any award following the Employee’s behaviour. The Employer also argued that any award the Employee received from the tribunal should be reduced to nil on the basis of her making the recording.

The tribunal noted that:-

1. the Employee did not make the recording for the purpose of entrapment or attempted entrapment; the Employee asked no questions with a view to obtaining favourable answers.

2. the Employee was flustered at the time and was unsure if the device would even work.

3. the Employee did not make any use of the recordings as part of the internal grievance proceedings with the Employer.

4. the Employee only created a transcript because of her legal obligations to do so as part of the tribunal’s disclosure process (as the submission of an audio recording is not permitted).

5. the making of a covert recording was not set out in the Employers disciplinary policy as amounting to gross misconduct, and the Employer as at the date of the tribunal still had not amended its policy in light of this claim.

Where the tribunal is assessing whether or not to make a deduction to an award it is required to consider the chances of the employee being dismissed fairly had the employer known about the employee’s conduct at any time prior to dismissal and then adjusting any award in line with that conclusion. In this case the tribunal concluded that if the Employer had known about the covert recording it was possible this could be considered misconduct which led to dismissal. Interestingly however, the tribunal considered the prospect of dismissal to be low, therefore, only reduced the award by 10%.

The tribunal noted that there was a time when it would have been much more difficult for an employee or employer to covertly record a meeting. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. However, in the tribunal’s view times have now changed. Most people now carry with them a mobile telephone which is capable of making a recording. Interesting the tribunal noted that in its collective experience it is now not uncommon to find that an employee has recorded a meeting without saying explicitly saying they are doing so. The tribunal were of the view that this is not normally undertaken to entrap or gain a dishonest advantage. It may have been done by the employee to keep a record, protect the employee from misrepresentation when faced with an accusation of an investigation, or to allow the employee to obtain advice from a union or elsewhere.

Based on the above rationale the tribunal said it was not bound to find that the covert recording of a meeting undermines the implied term of mutual trust and confidence between the employer and the employee to the extent the employee should be dismissed. A tribunal is entitled to make an assessment of the context in which the recording was made. The purpose of the recording will be relevant and in the tribunals experience the purpose of the recording may widely vary from the highly manipulative employee attempting to entrap the employer to the confused employee and vulnerable employee seeking to keep a record or guard against misrepresentation. The extent of an employee’s blameworthiness will also be relevant, it may vary from the employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has panicked and not thought about the ramifications of making such a recording.

What is recorded may also be relevant, it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed. (in which case the recording could involve a serious breach of the rights of one or more others).

Any evidence of the attitude of the employer to such conduct may also be relevant. In the tribunal’s experience it is still relatively rare for covert recordings to appear on a list of instances of gross misconduct in a disciplinary procedure, however this may change soon.

Despite the above the tribunal still noted it thought it was best employment practice for an employer or employee to say if there is any intention to record a meeting save in the most pressing of circumstances and it will generally be misconduct to do so. This practice allows both sides to consider if it would be desirable to record the meeting and if so how. It is not always appropriate to record a meeting as it could inhibit a frank exchange of views between representatives and members of management. If a meeting is long, consider if a summary note will be of more value than a recording which may require transcription.

Take-away points

1. It was noted that any evidence of the attitude of an employer to covert recordings will be relevant to deciding if such recordings breach the implied term – and that in its experience, it was still ‘relatively rare’ for covert recording to be listed as examples of gross misconduct in a disciplinary procedure. Consider if it now time to update your policies and procedures to note that recordings of meetings should not be made without consent.

2. Where a covert recording is taken, do not automatically assume this will constitute misconduct.

3. It is also sensible for employers to ask at the start of a meeting if employees are recording it and make it clear that if they do so secretly then this may be regarded as gross misconduct.

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