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Covert recordings: “For the times they are a-changing”

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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.