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Almost everyone carries around with them a recording device nowadays, in the form of a smartphone or wearable technology.  Where does this leave HR managers and employers in dealing with employees who ask (or don’t ask as the case may be!) to record meetings?

The Employment Appeal Tribunal (EAT) has recently handed down its judgment in the case of Phoenix House v. Stockman.

Ms Stockman (a finance employee) had secretly recorded a meeting with HR during which she was told that she would be disciplined for having earlier interrupted a meeting about allegations she had made against her line manager. Ultimately Ms Stockman was dismissed as a result of an irretrievable breakdown in relationships.  The secret recording only came to light during her subsequent tribunal claim.

Without going into the details of the other findings of the Employment Tribunal (ET), it was found that Ms Stockman did not make the covert recording to try to entrap the company managers, but only because she felt flustered at the time. The impact of this finding was that she was still found to have been unfairly dismissed, but the ET reduced the compensatory award by 10%.

Phoenix House appealed against the ET’s approach to the covert recording of the meeting.  Its position was that, had it known about the recording, it would have dismissed Ms Stockman for gross misconduct and that she should not be entitled to any compensation on that basis.

Ultimately the EAT agreed with the ET, finding that Ms Stockman had not recorded the meeting with the intention of snaring her employer or obtaining confidential information (she had recorded a single meeting concerned about her own position) and that the tribunal had made a legitimate assessment of these facts and reduced the compensation accordingly.

The EAT made some interesting comments around covert recordings more generally.

The accessibility of a recording device being the first observation: “Times have changed … it is now not uncommon to find that an employee has recorded a meeting without saying so.” The EAT said that the reason for the recording must always be considered – this reason will not always be sinister or to gain a dishonest advantage, but will be relevant and, occasionally, justifiable. Importantly, the EAT rejected the employer’s argument that covertly recording a meeting will necessarily undermine the trust and confidence between employer and employee.

The culpability of the employee must also be considered – the EAT suggested inexperience could lead to an employee recording a discussion completely innocently? What about the content of the recording? If a note of the meeting would be shared in any event, then perhaps there isn’t (or shouldn’t be) a problem. This is contrasted with a meeting during which confidential information or information about others is disclosed.

The EAT’s concluding remarks pointed out that rarely does “covert recording” appear on a list of instances of gross misconduct in a disciplinary procedure and that this might also be pertinent. Indeed, there was no mention in the disciplinary procedure used by Phoenix House of such misconduct (even by the time the case was being heard by the ET, as pointed out by the EAT).

Going forward the EAT suggested, practically speaking, that it would be good employment practice for an employee or employer to say if there is any intention to record a meeting, save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.

The government has launched a consultation on ways in which government and employers can take action to reduce ill-health-related job loss in the UK.

Despite low unemployment figures, it remains the case that those who suffer from ill health face barriers entering and remaining in work. The government reported that although around 8 in 10 non-disabled people are employed, only five in 10 disabled people are in work, and disabled people are 10 times more likely to leave work following long-term sickness absence than non-disabled people.

The government is seeking views on a number of proposals which aim to encourage early action by employers to engage with and support employees with long-term health conditions, including:

• A right for employees to request work(place) modifications on health grounds. Under the Equality Act 2010, employers are currently under a duty to make reasonable adjustments where an employee with a disability and is placed at a substantial disadvantage as a result of a provision, criterion or practice imposed by the employer, a physical feature of the employer’s premises or a failure by the employer to provide an auxiliary aid. The proposed change would allow employees to request that modifications are made even where the employee doesn’t meet the definition of disabled under the 2010 Act. The employer, unlike under the duty to make reasonable adjustments, would be able to refuse a request for workplace modifications on legitimate business grounds.
• Reform of Statutory Sick Pay (SSP). The proposed changes would enable an employee returning from a period of sickness absence to have a flexible, phased return to work while still receiving some SSP and would see those who do not qualify for SSP (as they earn below the Lower Earnings Limit) receive a proportion of their wage as SSP. Additionally, there are proposals to increase the fines for failure to pay SSP where it is due, and the inclusion of the enforcement of SSP within the remit of a proposed new, single labour market enforcement body (see further commentary on the consultation in relation to this new body here.
• Ways of improving the use of Occupational Health (OH) services by employers. The government is seeking views on ways to reduce the costs, increase market capacity and improve the value and quality of OH services.

The proposed measures aim to recognise the role that employers play in assisting employees with disabilities and health conditions to stay at work, and the importance of the employer taking early action. The consultation looks to measure the impact of the proposals on businesses, individuals and the occupational health profession. The views gathered during the consultation will inform government policy in this area. The consultation will run until 7 October 2019 and is available here.

Since the publication of the 2017 Taylor Review of Modern Employment Practice and the government’s subsequent Good Work Plan, we have been keeping you up to date with new regulations and proposals for implementing recommendations (earlier updates here and here).

The Good Work Plan news this week, against a backdrop of record levels of employment and growing wages,  is that the government has launched a consultation to consider the case for a new single labour market enforcement body.

The reason for the consultation and the potential new enforcement body arises out of the government’s recognition that “effective enforcement plays a vital role in giving individuals the confidence to challenge employers where they are denied their rights and it creates a level playing field between businesses”.  The proposed focus would be on protecting the most vulnerable workers’ employment rights.

The government’s vision is that a new single enforcement body could deliver extended state enforcement, a strong recognisable single brand, better support for businesses, pooled intelligence, co-ordinated enforcement action, more effective use of resources and closer working with other enforcement partners.

The government points out in the consultation briefing that other countries have taken steps to establish more streamlined inspectorate bodies, and in fact this type of body is recommended by the International Labour Organisation. International case studies are referred to and provide an interesting comparison. 

The proposal is that a new single labour market enforcement body would deal with the National Minimum Wage (currently enforced by HMRC); employment agency regulations (currently enforced by the Employment Agency Standard Inspectorate); umbrella companies; licences to supply temporary labour in high risk sectors e.g. agriculture and the fresh food chain (currently enforced by the Gangmasters Labour Abuse Authority); labour and worker exploitation; and holiday pay for vulnerable workers.  The government is also interested to hear views on whether the new body should play any role in the enforcement of Employment Tribunal awards.

The consultation closing date is 6 October 2019. The consultation can be accessed here. As usual responses are welcome online, via email or in writing.