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Was covert recording by employee 'misconduct'?

View profile for Emily Yeardley
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The advent of smartphones means that it could not be easier to make an audio recording of an internal meeting without the other party’s knowledge.

Employees may feel confused and vulnerable and want the protection of recording exactly what the employer says. In the case of Phoenix House Ltd v Stockman & Anor UKEAT/0058/18/OO the Employment Appeal Tribunal (EAT) considered whether the employment tribunal was correct in deciding that the employee had been unfairly dismissed. However, the interesting point about this case is the useful guidance given by the EAT on the issue of covert recordings when considering how much compensation to award.

Facts

Mrs Stockman was employed as a payroll officer for Phoenix House. The finance department, in which she worked, was restructured. Her role was to be made redundant but she successfully applied for another more junior role at the charity as an alternative to dismissal.

Mrs Stockman contended that she had been treated unfavourably and the restructure was biased against her. She argued that her colleague agreed with her complaint. As a result, the work colleague was called to a meeting which Mrs Stockman interrupted, asking what the purpose of the meeting was. She was asked to leave but refused. Owing to her conduct, she was called into a meeting which she covertly recorded.

Employment Tribunal

Mrs Stockman bought claims against Phoenix House, including a successful unfair dismissal claim.

During the employment tribunal hearing, Phoenix House discovered that Mrs Stockman had recorded the meeting, without its consent.

The tribunal reduced Mrs Stockman’s compensation by10% to reflect the fact that, had the employer been aware that she had recorded the meeting, it would have dismissed her for gross misconduct. The tribunal did not make a larger reduction because it found that she had made the recording because she felt flustered (she wasn’t even sure that the recording had worked) and not to entrap the employer.

Employment Appeal Tribunal

Phoenix House appealed. It argued that her compensation should have been reduced to nil as, had it been aware of the recording, it would have dismissed her for gross misconduct. The appeal was dismissed. The EAT considered the content of the recording, the purpose of the recording and the blameworthiness of the employee. It found that there was no malicious intent on Mrs Stockman’s part. The recording contained information which was detrimental to her case and it did not contain highly confidential information.

The EAT commented that there are a number of reasons why an employee or an employer may wish to make a recording. Covert recordings will therefore not automatically be deemed to undermine the trust and confidence between the parties entitling an employer to dismiss. It may, however, be considered misconduct. This will depend on the reasons for the recording as well as the employer’s attitude to covert recordings. It will also depend on the content of the recording as the recording of highly confidential information may have given rise to a stronger argument that the conduct amounts to a breach of the duty of trust and confidence. A key question will be whether it includes discussions whilst the employee is not present, such as deliberations between the panel.

Comment 

If you do not wish an employee to record a meeting, you should inform the employee at the outset of the meeting that covert recordings are not permitted and seek confirmation that they are not recording. An employee has a right to be accompanied to a disciplinary or grievance hearing by a work colleague or trade union representative, who can take notes for the employee and may be a potential witness in employment tribunal proceedings. This may provide some reassurance to the employee in the absence of a recording. Specifying in a disciplinary or grievance policy that covert recordings will be treated as serious misconduct, which could result in dismissal without notice, may be a sufficient deterrent for the employee but will also be helpful in demonstrating the employer’s attitude to covert recordings.

Even if an employee’s employment tribunal claim succeeds, tribunals can take into account an employee’s conduct when determining the level of compensation to award.

If you would like to discuss this article in more detail, please do not hesitate to contact a member of the Employment team.

This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.

 

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