Covert Recordings in the Workplace
Covert recordings of meetings has become a more prominent issue for employers in recent years, due to the ease with which people can now make recordings on their smart phones.
At Blacks, we frequently come across cases where individuals have covertly recorded disciplinary and grievance hearings and who now wish to rely on it in Tribunal proceedings.
From an employee’s perspective, a recording can help them capture exactly what has been said to them. Employees often then try to use it against an employer to their advantage.
However the Employment Appeal Tribunal (EAT) has just handed down a judgment which gives employers useful guidance on how to deal with this issue.
In Phoenix House v Stockman, an employee brought a Claim for unfair dismissal and disclosed a transcript of a covert recording she had made of a meeting with her employer prior to her dismissal.
It was accepted that at the time of her dismissal the employer wasn’t aware that the meeting had been recorded; the recording only came to light at the disclosure stage of the Employment Tribunal (ET) proceedings.
However had the recording come to light before the employee had been dismissed, the employer would have been within its rights to consider it a disciplinary matter.
The employee won her claim but the employer appealed to the EAT on the grounds that her compensation should be reduced.
The employer argued that although it hadn’t known about the recording, it constituted both misconduct and a breach of the implied term of trust and confidence because the covert recordings were made so that the employee could gain an advantage over her employer.
Therefore, it was ‘just and equitable’ that any compensation should be reduced to reflect the employee’s misconduct.
Rejecting the employer’s argument, the EAT made some useful observations regarding the phenomena of covert recording at work.
It acknowledged that in this day and age it’s far easier than it used to be for employees to record meetings without their employers knowing about it. To that end, it is good practice for either party to state at the outset if there is any intention of recording a meeting, except in the most pressing of circumstances.
If this isn’t done, it will generally be misconduct to record a meeting without the employer knowing about it if it’s discovered during employment.
However, the EAT went further and stated that employers need to look at the circumstances in which an employee may have made a covert recording and highlighted that a distinction must be drawn between the ‘highly manipulative employee’ who wants to entrap an employer, with the ‘confused and vulnerable’ employee who simply wants an accurate record of what was said.
Furthermore employers need to consider what was being recorded, whether highly confidential information/personal information was discussed, and whether or not the employee had been specifically told not to record the meeting.
How Tribunals distinguish highly between manipulative and confused/vulnerable employees in the future will be interesting to see.
Perhaps the most useful piece of advice from the EAT though, was that employers should update their handbooks to state that covertly recording meetings will amount to misconduct and will be dealt with as a disciplinary issue.
Employers should also note that sending work emails home to personal accounts to use them against employers in the future will also be considered as misconduct (depending on what information is being sent off server).
Employers who discover they have been covertly recorded shouldn’t jump to conclusions and need to take stock before they decide to commence disciplinary proceedings.
Our advice is, that as well as updating your disciplinary policy to cover covert recordings, formal meetings should be recorded and a verbatim transcript prepared to guard against the risk of misrepresentation by ensuring that all parties have an accurate record of what was said.
Finally, this doesn’t just extend to what is said in the room whilst the employee is present.
A phone left recording which captures discussions between unsuspecting parties can also be admissible in evidence, so employers need to be mindful of what’s said as well as what’s put in writing.