Covert recordings in the workplace – can you, (should you), dismiss?
The case of Phoenix House v Tatiana Stockman that went before the Employment Appeal Tribunal (EAT) was asked to rule on whether an employee covertly recording a meeting can be classed as misconduct?
Following a department restructure Mrs. Stockman’s (Mrs. S) role was made redundant by Phoenix House (PH) although she took another role within the department. Mrs. S raised a grievance shortly after starting in that new role in respect of the treatment she received from her manager and alleging that the restructuring process was biased against her.
When the concerns were passed on to her manager, he called a meeting to discuss the complaint. Mrs. S walked into the room and demanded that they tell her what the conversation was about, refusing to leave the room when asked.
Mrs. S subsequently had a meeting with HR and covertly recorded that meeting. She raised a grievance about various matters, disciplinary proceedings were pursued against her and a mediation meeting between her and her manager was unsuccessful. The head of HR concluded that Mrs. S had a mistrust of senior management and that the working relationship had irretrievably broken down and Mrs. S was dismissed.
Mrs. S issued proceedings in the Employment Tribunal (ET) for a number of matters to include unfair dismissal. During the course of the ET proceedings it came to light that Mrs. S had covertly recorded the meeting with HR where she was informed she was facing disciplinary action.
The ET ruled Mrs. S had been unfairly dismissed but made a deduction of 30% from the compensation awarded to her. This figure included a 10% reduction to reflect Mrs S’s conduct in making the covert recording.
The ET found that as covert recording was not set out specifically in PH’s disciplinary policy, it was not being used to ‘entrap’ them; Mrs S could not be sure that the device was working properly while recording the meeting, it could not be considered gross misconduct and Mrs S had been unfairly dismissed. PH appealed to the EAT.
The EAT considered in particular the purpose of a covert recording and in upholding the ET’s original decision stated: “In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere.”
A covert recording will therefore not necessarily always amount to an 'undermining of the trust and confidence' between the parties so as to justify dismissal; much will depend upon the reason(s) for the covert recording taking place.
Symptomatic of the technically advanced times we now live in, the use of covert recordings is a situation that we are seeing more and more enquiries about; most people have smartphones which are capable of making a recording very easily and covert recordings of meetings are an increasing concern for employers.
As an employer you can easily protect yourself by laying down clear rules surrounding the recording of meetings. These rules can be set out in a staff handbook, in a separate disciplinary or grievance policy or simply by advising an employee at the outset of any meeting that covert recordings are strictly prohibited and confirming that a note taker will make an official record of the meeting instead. In all cases it should be made clear that the making of a covert recording could result in disciplinary action and may result in a dismissal for gross misconduct.
Additionally, at the outset of a meeting the employee should be asked to confirm they are not making a covert recording. If it later transpires that they did make one this could be used in the ET as evidence of their (lack of) credibility.
If anything discussed in the above case raises any concerns or questions then please do not hesitate to contact one of the Employment Law Team.