It is becoming increasingly common for employees to make covert recordings of meetings held with their employer. The reasons behind these recordings vary from a simple desire to keep a record of what is said to attempts to entrap their employer and use the recording against it in court proceedings.
The Employment Appeal Tribunal (EAT) recently considered the issue of covert recordings in Phoenix House Ltd v. Stockman. The EAT had to decide whether an employee’s covert recording breached the implied term of mutual trust and confidence. In its decision, the EAT provided helpful commentary on covert recordings which may assist employers to navigate this difficult area.
Mrs Stockman worked for Phoenix House as a financial accountant. Following a restructuring in 2013, during which she successfully obtained another role, Mrs Stockman told her line manager that she felt she was treated unfairly during the restructuring process by the finance director because, she thought, he didn’t like her. Another employee, Mr Mistry, was present during this meeting and Mrs Stockman said that he would support her allegations.
Mrs. Stockman later saw her line manager, the finance director and Mr Mistry talking and interrupted the meeting demanding to know what they were talking about. She was asked to leave the meeting and proceeded to speak to the CEO of Phoenix House and to the head of HR. It was this separate meeting with the head of HR that Mrs Stockman secretly recorded.
Several months later, following grievance and disciplinary proceedings, Phoenix House dismissed Mrs Stockman as it felt that the relationship between the parties had broken down irretrievably. Mrs Stockman subsequently brought a claim for unfair dismissal in the Employment Tribunal and the fact that she had made a covert recording of the meeting with the head of HR emerged during the disclosure process.
Mrs Stockman was successful in her claim; however, Phoenix House appealed against the award of compensation, arguing that it should be reduced to reflect Mrs Stockman’s pre-dismissal conduct in making the recording, which Phoenix House claimed amounted to misconduct.
EAT comments on covert recordings
The EAT dismissed the appeal, stating that the Employment Tribunal correctly approached the question of reducing compensation and rejected the argument that Mrs Stockman’s conduct breached the implied term of mutual trust and confidence. In reaching its decision, the EAT made several interesting comments regarding the factors to consider when looking at covert recordings made by employees.
Firstly, the EAT noted that it is now much easier to make recordings and if an employee records a meeting it does not necessarily mean that the recording is done to entrap or gain a dishonest advantage. There are many reasons why employees may feel that it is necessary to record a meeting; they may just want to keep a record of the meeting to protect themselves from being misrepresented or they may want to use the recording to obtain advice from a union or other adviser.
Concluding that an Employment Tribunal is not bound to find that the existence of a covert recording automatically undermines trust and confidence between an employer and an employee, the EAT outlined a number of relevant factors to consider in these sorts of cases:
- the purpose of the recording;
- the employee’s blameworthiness;
- what has been recorded – for example, it may be more difficult for an employee to defend recording a meeting where confidential information or personal information of other employees is discussed than a meeting solely dealing with that employee; and
- evidence of the employer’s attitude to that type of conduct, e.g., in their disciplinary policy.
The EAT stated that in its experience it is relatively rare for covert recordings to appear on a list of acts of gross misconduct in a disciplinary policy; however, this may change in light of this decision. The EAT also suggested that it might be good practice for both employers and employees to say if there is any intention to record a meeting and that it will generally amount to misconduct if an employee does not declare their intention to the employer to do so. This will allow both sides to consider whether it is desirable to record a meeting, and if so, how. A better approach may be to prepare a meeting note or list of agreed outcomes at the end of the meeting.
Practical tips for employers
The EAT judgment makes clear that, while covert recordings may be frowned upon, they are here to stay. In light of this, some practical steps employers may wish to take include:
- updating the examples of gross misconduct in disciplinary policies to include covert recordings;
- asking an employee if they plan to record a meeting and making clear that if they do so it may be regarded as misconduct, which could lead to disciplinary proceedings;
- being aware of any behaviour which might suggest that the employee is recording a meeting, such as the employee placing their mobile phone on the table. In this instance, one option open to an employer is to ask the employee to switch off their phone and state that the meeting will not proceed until this has happened; and
- reminding staff that covert recordings are increasingly common and that therefore they should conduct themselves appropriately to avoid any embarrassment.
*Research and drafting assistance for this post was provided by Reed Smith Trainee Solicitor Anna Greenfield.