Covert recording of meetings – is it misconduct?

With the development of technology and advent of smart phones, it is becoming increasingly easy for employees to take videos, photos or even make voice recordings at work with just the click of a button.

But should employees think twice before hitting that red button?

The Employment Appeal Tribunal (EAT) recently considered whether it would amount to misconduct to make a covert recording at work in the case of Phoenix House Limited v Stockman.

What happened in this case?

Ms Stockman brought claims of general unfair dismissal, unfair dismissal and detriment for whistleblowing, race discrimination, victimisation and breach of contract. She was successful in her unfair dismissal claim. The Tribunal also decided that she had suffered detriment as a result of whistleblowing and victimisation and awarded her the basic award and compensation.  The employer had argued this award should have been reduced to nil to reflect the fact they would have dismissed her for gross misconduct had they known she made a covert recording of a meeting.  However, the Tribunal at first instance did not favour this argument.

As part of the tribunal process it came to light that Ms Stockman had covertly recorded a meeting between herself, her colleague and her manager. She had been suspicious of the way he was treating her in relation to a restructuring exercise of the finance department. The treatment led her to raise a grievance.

The Tribunal did not consider Ms Stockman to have made the recording to entrap or attempt to entrap the employer. For instance:

• she had not posed any questions which would give the impression of someone attempting to further their cause;
• she was, in fact, flustered when she recorded the meeting;
• she was unsure whether the device was working; and
• the tribunal also noted that the employer did not specify making a covert recording as an act of gross misconduct in its disciplinary policy

Appeal

The employer appealed to the Employment Appeal Tribunal (EAT) on various grounds. One of the grounds related to the Tribunal’s approach in reducing the basic and compensatory award regarding the covert recording.

The EAT found that the Tribunal had correctly applied the law in assessing the level of reduction saying that the purpose for which the recording was made was relevant.

They suggested that the conduct of a highly manipulative employee, seeking to entrap the employer, would be more likely to amount to misconduct as opposed to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation.

In rare cases, pressing circumstances may justify the recording of a meeting. They also considered that the extent of blameworthiness was relevant. They noted that an employee who was aware that recording was prohibited or lied about making a recording was more blameworthy than, say, an employee who had given little thought to the ramifications. Of course, the content of the recording is also a relevant factor particularly given it may contain confidential or personal data.

What can employers and employees learn from this?

The EAT made a number of suggestions, which included:

Good practice for employers and employees would be to set out the intentions regarding recording a meeting at the outset

If an employee disobeys the instruction not to record this adds weight to any recourse they take at a later date. From an employee perspective, it allows employees the opportunity to disclose any intention of recording and/or challenge the rationale of the employer. Any discussions in this regard should be documented in the minutes of the meeting so there is an accurate record to fall back upon if needed.

Making it clear if meetings are being recorded

While some disciplinary and investigation meetings are recorded by the employer as part of their normal procedures, this should be made clear to employees at the outset of the meeting and the employee should also be given the opportunity to review the accuracy of the transcript. However, there are certainly cases where recording would not be beneficial as it may hinder open and frank discussions, for example mediations or other facilitated meetings between employees.

Consider adding covert recording of meetings as misconduct in the disciplinary body

Following the EAT’s decision, employers should consider including covert recording as an act of misconduct or gross misconduct in their disciplinary policy. While most disciplinary policies set out a non-exhaustive list of misconduct and gross misconduct, the commentary from the EAT suggests this might not be enough. Much, of course, depends on the facts surrounding the recording, the type of work the employer carries out and the content of the recording. In some circumstances, employers may be able to rely on other examples in their disciplinary policies such as, ‘failure to follow a reasonable management instruction’ or ‘refusal to obey instructions’ in cases where the employee goes against the instruction of the employer.

Commentary

It is clear that the widespread use of smart phones by employees has played a part in both the tribunal and EATs decisions. The EAT noted that most employees have mobile phones which are capable of making recordings and that prior to this era, it would have been much harder for employees to covertly record a meeting. On that basis, it was easier to draw a conclusion that the employee was recording with the purpose of entrapping the employer. However, the ease with which employees can make recordings nowadays can make it more difficult to identify the intention of the employee.

How does this decision sit with admissibility of covert recordings in Tribunal?

Generally, Employment Tribunals are more lenient with regards to admissibility of evidence so long as relevance can be demonstrated.

The case law in this area has generally found that where employees covertly record a disciplinary hearing or meeting this evidence can be used in the employment tribunal proceedings.  However, any parts of the recording relating to private discussions or deliberations between the panel are mostly not generally admissible on the grounds of public policy, although there have been exceptions.

Tying together the recent Stockman case with the previous case law on covert recordings, employers should be clear at the outset of meetings the rationale for not recording assuming that is what they are intending to do. They will probably want to have their position on this set out clearly in the applicable policy as well. That way the expectations have been set out and are transparent for all.  Good practice would dictate that clear expectations around the recording (or otherwise) of the meeting should be stated by the employer at the start of the meeting. If, for instance, an employer does not want a meeting to be recorded, employees should be cautioned against covertly recording and advised of the consequences of doing so. These are sensible protective measures for employers to take and will factor into the assessment of a Tribunal around the admissibility of covert recordings by an employee.

Regardless, employers in formal hearings such as grievance, disciplinary hearings or appeals should encourage the panel to leave the room for deliberations to take place. That eliminates the risk of an employee covertly recording those deliberations by leaving their device in the room.

Finally and regardless of any policy position or opening comments made at a meeting, employers may simply wish to approach these meetings as if they are being covertly recorded. Perhaps we have now reached the stage where employees recording meetings is, in fact, the new norm? We also know, generally speaking, tribunals seem fairly content to find such evidence admissible in future tribunal proceedings. It’s a risk area for employers so they may prefer to be safe rather than sorry at a later date. It may also provide comfort to their employees about how formal meetings are going to be conducted.

Anderson Strathern have a team of specialists in employment law, who handle all different areas of employment law for both employers and employees. For more information on this article, or unfair dismissal and discrimination issues, please contact Jemma Forrest.

Legal disclaimer