In the age of the smartphone, it is easy for employees to covertly record video or audio at work.
It is often assumed, wrongly, that because of the secretive nature of such recordings, they cannot be used as evidence against an employer. However, whilst this might present problems in civil or criminal cases, it is well-established that such recordings are not, simply because of their covert nature, inadmissible in the employment tribunal.
It is considered best practice for an employer or employee to disclose their intention to record a meeting, with it generally being seen as misconduct if an employee does not do so. However, the recent case of Phoenix House Ltd v Stockman has clarified when it will be acceptable for an employee to make a covert recording.
Mrs Stockman was employed as an accountant for alcohol and drug addiction charity, Phoenix House. During a restructuring exercise, she complained of unfair treatment. When she was called into a meeting with the head of Human Resources, she covertly recorded the meeting. The relationship broke down and Mrs Stockman was dismissed. She later brought a successful unfair dismissal claim in the employment tribunal, but Phoenix House appealed the decision, arguing that her compensation should have been reduced to account for her secretive recording of the meeting, as to do so was misconduct breaching the implied duty of trust and confidence.
Employers should take note of what the Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) had to say about whether covert recordings are acts of gross misconduct.
The ET found that, as covert recording was not specifically mentioned in Phoenix House’s disciplinary policy, Mrs Stockman could not be said to be using the recording to duplicitously entrap her employer. Further, Mrs Stockman had not been sure that the device was working correctly whilst recording the meeting. Therefore, the ET held that it was not gross misconduct.
The EAT agreed and outlined the factors employers should weigh up when trying to decide whether a covert recording is misconduct:
- The purpose of the recording: as the EAT put it, “the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”.
- The blameworthiness of the employee: is this an employee who has been told not to record or who has lied about recording, or is this a scared and distressed employee who has barely considered what they are doing?
- The content of the recording: was it a meeting where highly confidential business or personal information relating to the employer or other employees was discussed?
In this case, the EAT found the approach of the ET had been sound. Further, Mrs Stockman had not made the recording with the intention of entrapping her employer. She had recorded a single meeting that concerned her own position, rather than the confidential information of the employer or other employees. Interestingly, the EAT noted that employers might help themselves in the future by including covert recording as an example of gross misconduct in their disciplinary policy.