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Not All Secret Recording of an Employer Is Equal
I am often asked by employees whether it is okay to record meetings with their employer and by employers what they can do when a covert recording comes to light.
Recording has become an everyday reality in the workplace.
The Employment Appeal Tribunal recognises this in the recent case of Phoenix House Limited v Stockman. To quote from the judgment: “most people carry with them a mobile telephone which is capable of making a recording and it is the work of a moment to switch it on”. So does that make recording more acceptable these days? Or does secretly recording your employer damage the employment relationship to the point of no return?
In the context of a workplace dispute involving Mrs Stockman feeling disgruntled about how she had been treated during a restructuring process, her interrupting a meeting and demanding to know what was going on which then spiralled into disciplinary, grievance and dismissal territory. Mrs Stockman secretly recorded a meeting with HR. The HR director described the meeting in the Employment Tribunal as “pleasant and in no way confrontational” but she had not known she was being recorded at the time.
Mrs Stockman was awarded compensation at the Employment Tribunal for unfair dismissal but her award was reduced by 30% as a result of her conduct before her dismissal having made a covert recording. At the appeal stage, it was argued that Mrs Stockman should receive no compensation at all.
The Tribunal found that all of these things were relevant:
- Mrs Stockman did not appear to have set out to record the meeting with HR because she wanted to entrap her employer
- she did not ask questions which looked as if they had been designed to get the right answer for her
- she seemed flustered and uncertain if the covert recording would work
- she did not deploy the covert recording to help her as part of the grievance and disciplinary processes (the recording only came to light because Mrs Stockman had to disclose it at the disclosure stage of the litigation)
- the transcript was not entirely helpful to Mrs Stockman once disclosed
- Phoenix’s disciplinary policy did not state that covert recording was gross misconduct and this policy was never updated
The Employment Appeal Tribunal looked again at how the Tribunal had approached the reduction of Mrs Stockman’s compensation based on what it knew of Phoenix and Mrs Stockman’s actions and also taking into account whether Phoenix would have dismissed Mrs Stockman fairly had it known of the covert recordings. It considered also whether there had been a breach of trust and confidence. These things were relevant:
- because it is easier to record meetings today, recording is not necessarily done to entrap or gain dishonest advantage. There are other reasons to make recordings such as just to keep a note of what happened and to avoid being misrepresented or to obtain further advice
- Employment Tribunals do not have to conclude that the covert recording of a meeting undermines trust and confidence
- circumstances matter and a “highly manipulative employee” is not the same as a “confused and vulnerable employee”
- recording may be completely justified in pressing circumstances
- fault is relevant and whether an employee had been told that recording was not permitted
- what the meeting was about matters – was the meeting to discuss highly confidential information or personal information about an employee?
Covert recording – what can employers and employees take away from this?
- Employers and employees should agree at the start of meetings whether recording is acceptable.
- Covert recording may be misconduct but not necessarily gross misconduct.
- Where covert recording is listed as an act of gross misconduct this could lead to a different outcome and employers will I expect be adjusting contracts and policies quick smart.
Rhian Radia joined Bishop & Sewell to head up the employment team in 2019.
She has a City background and over 19 years of experience practising employment law. Rhian advises both companies and senior individuals on a full range of employment matters and is well placed to see employment issues from every perspective. She works closely with HR teams to promote claim avoidance and manage risk. Rhian is committed to understanding the specific needs of her various clients and has particular experience of advising in the financial services, healthcare and media sectors.