Covert recordings in the workplace

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In this issue of OGR Stock Denton Employment Law Update we consider  a question we are often asked by our clients, whether employees are permitted to make covert recordings at work, say in a disciplinary or grievance meeting.

Making a covert recording in an age where almost everyone owns a smartphone is a very straightforward and accessible thing to achieve and means that employees are now able to make secret recordings of meetings with very little effort whereas in the past  to achieve this would have taken considerable organisation on the employee’s part. This issue was considered by the Employment Appeal Tribunal (EAT) in the recent case of Phoenix House v Stockman.

It may be helpful if we first consider the facts of this case.

THE FACTS

The Claimant, Mrs Stockman worked as a financial accountant for Phoenix House, a charity. She complained she was unfairly treated during a restructuring process, and while in a meeting with the head of HR she covertly recorded the meeting.  Mrs Stockman was successful in her claim of unfair dismissal against the Respondent. She had been dismissed due to an irretrievable breakdown of relationships, which was not connected to the covert recordings. The tribunal held that this decision was unreasonable and the process that was followed to reach the decision was unfair. It was only during this tribunal claim that it was revealed that Mrs Stockman had covertly recorded the meeting. The Employment Tribunal (ET) found that Mrs Stockman did not make the recordings for entrapment purposes but rather because she was flustered at the time and reduced the compensatory award by 10% to reflect her conduct.

The Respondent appealed the ET’s decision, arguing that had it known about the recording it would have dismissed Mrs Stockman for gross misconduct and that her compensation should therefore be reduced to nil. They argued that Mrs Stockman’s conduct of covertly recording the meeting was a breach of the implied term of mutual trust and confidence.

THE EAT’S DECISION.

The EAT dismissed the appeal. They held that the ET had been entitled to find that Mrs Stockman had not recorded the meeting with the intention of entrapment. She had recorded a single meeting because she was concerned about her own position rather than with the intention of obtaining confidential information of the business. The EAT also provided helpful guidance on some of the relevant factors to consider when determining whether or not a covert recording could be justified. These factors are as follows:

  1. The purpose

The purpose of the recording was relevant, the EAT stated that as Mrs Stockman was not using the covert recording to deceive her employer it could not be gross misconduct; they said

“The purpose of the recording will be relevant; and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap to the confused and vulnerable employee seeking to keep a record and guard against misrepresentation.”

It is therefore important to consider the reasons why an employee may want to record the meeting. Do they simply want to protect their position and have a clear and accurate record of the meeting or are there any other, more complex, reasons that may make you suspicious.  

  1. Knowledge

An employee’s knowledge that their actions may constitute misconduct or gross misconduct is always a relevant factor. In this case the EAT observed that employers rarely list covert recording as an example of gross misconduct in their disciplinary policies, although they added that this may now change. The EAT did state that it “considered it good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.”

As always, each case will turn on its own facts. You must look at each situation individually. Is this a case where a naïve and inexperienced employee just wants to make a record of their meeting for their own purposes, and doesn’t really have an understanding about what they are doing? Alternatively is this more a case of an employee who has been specifically told that a recording must not be made and then lied about it?

  1. Content

What is being recorded is also relevant.  If this was a meeting to discuss highly confidential business of the employer or personal information or information about other people compared with a meeting of which a record would normally be kept anyway.

PRACTICAL POINTS

So what does all the above mean to you in practical terms? Here are some practical steps you can take.

  • At the start of any meeting, whether it is under a disciplinary or a grievance procedure, make it clear that recordings are prohibited and ask that employees turn off mobile phones at the beginning of the meetings. Make it clear that if despite this warning, they still make a covert recording, then this may be regarded as gross misconduct.
  • If an employee does record a meeting without informing you, then as set out above, this will generally amount to misconduct. However, it will not necessarily amount to gross misconduct – that will require consideration of all the facts of the particular circumstances.
  • If you are in a situation where you want the meeting recorded then it remains good practice to communicate this from the outset. Although both sides should consider how desirable it is for meetings to be recorded sometimes it can often change the way people behave, it can make people feel inhibited and can sometime prevent a honest exchange of views from taking places.
  • You may want to revisit your disciplinary policies specifically to include covert recording in the list of examples of gross misconduct.
  • It is also important to note that even if covert recording amounts to gross misconduct, the contents may still be disclosable as evidence in an Employment Tribunal. Therefore when conducting disciplinary and grievance hearings it is important to behave in a way that would be happy for a tribunal to hear. In Punjab National Bank ( International ) Ltd and others v Gosain the EAT determined covert recordings were admissible evidence at the final hearing, and this included comments made while the claimant was out of the rooms and the private deliberations of the panel were secretly recorded. In general, tribunals do not like using recordings as evidence but will use them in circumstances where the parties have a dispute as to what was said and a recording can determine this issue conclusively.
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Ali Kabani
Posted in Employment Law Update.