PHOENIX HOUSE LIMITED v MRS TATIANA STOCKMAN
There has recently been some very useful judicial guidance in respect of the covert recording of meetings by employees.
DHJ Legal is now recommending that its clients add ‘covert recording at work by employees, to include but not limited to formal meetings’ as an example of gross misconduct in company disciplinary policies.
In this unfair dismissal and discrimination complaint the employment tribunal considered whether, and to what extent, it should reduce compensation because the claimant had, unbeknown to her employer, covertly recorded a meeting. The employer argued that had it known of the recording it would have dismissed her and therefore no compensation should be awarded. It felt that the employment tribunal was bound to hold that any covert recording of a confidential conversation in the absence of a pressing justification was a breach of the implied term of trust and confidence because it is of its nature dishonest conduct designed to obtain an advantage for the employee and place another at a disadvantage.
The tribunal reduced compensation by just 10% and the employer appealed.
When dealing with this aspect of the appeal (and dismissing it), the EAT said this:
“We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience 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. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change.”
It also went on to balance its findings by saying this:
“That said, we consider that it is good employment practice for an employee or an 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. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.”
By adding ‘covert recording’ as an example of gross misconduct, employers obtain the possibility of using that to their advantage when defending tribunal proceedings where claimants rely on covertly obtained recordings of meetings. With technology as it is now, the covert recording of meetings is ever more likely.
