Most people own a smart phone these days - it is therefore becoming increasingly common and easier for employees to secretly record meetings or discussions in the workplace. We have seen employers face this issue in the past and it has certainly been a cause of frustration that recordings have been taken covertly by an employee, yet taking action against the employee is not always straightforward. The Employment Appeal Tribunal (EAT) recently considered this issue in Phoenix House Ltd v Stockman and provided some useful guidance including when such behaviour may amount to gross misconduct.
The EAT described how, previously, an employee would have had to go to lengths to record a conversation. However, in modern society, this can now be done instantly and with much less effort or concern. Covert recording is therefore becoming common practice for a range of purposes – some to entrap or frame unknowing parties, but others to protect themselves from misrepresentation or to obtain subsequent legal advice.
Whilst it remains good practice for an employee to indicate that they intend to record a meeting and not doing so would generally amount to misconduct (except in the most pressing circumstances), covert recording of a meeting is not necessarily gross misconduct and in fact, it is rarely cited in a disciplinary procedure as an example of gross misconduct. According to the EAT, whether a covert recording would undermine the trust and confidence between an employer and employee will hinge on the facts including: What was the purpose of the recording? What was recorded? Had the employee been told expressly not to make, or lied about making, a recording? Was the employee seeking to entrap or was the employee vulnerable and seeking to maintain a record? What is the attitude of the employer to such conduct? The more serious misconduct cases would be those recordings that would also infringe rights, for instance, a meeting that is recorded in which highly confidential information or personal information concerning the employer or an employee is discussed.
So what practical points can you take away from this case?
- At the start of any meeting carried out under your disciplinary or grievance procedures, make it clear that covert recordings are not allowed and also ask employees to turn off mobile phones at the beginning of these meetings;
- If an employee does record a meeting without informing you, it will generally amount to misconduct. But, it will not necessarily amount to gross misconduct – that will require consideration of all the surrounding facts including those mentioned above;
- Now is a good time to review your disciplinary policy and ensure that you specifically call out covert recordings as an example of gross misconduct; and
- Bear in mind that even if a covert recording amounts to gross misconduct, the content of that recording may still be disclosable in an employment tribunal. Individuals carrying out disciplinary and/or grievance meetings should therefore always behave in a way that a tribunal would consider reasonable.
Co-authored by Rachel Rigg and Ryan Hughes.