Can you treat it as gross misconduct?
It has increasingly become a common tactic for employees who may be experiencing issues at work to covertly record meetings with their employer. The reasons for doing so range from the innocuous – for example, a fear of saying something that may be misrepresented – to the insidious; wanting to entrap the employer into saying something that can later be used against them. While you may think that such recordings could not be used as evidence in a tribunal hearing, you would be mistaken. A tribunal will not automatically exclude secret recordings, and many an employer’s defence has collapsed because such evidence has been declared admissible.
Another aspect, which has often vexed employers, is what, if anything can be done if you discover that an employee has been covertly recording meetings. This was considered by the Employment Appeal Tribunal in the case of Phoenix House v Stockman where the question was whether the act of covertly recording a meeting constituted gross misconduct by the employee.
As mentioned, a covert recording is not considered to be inadmissible evidence in the Employment Tribunal. When an employee secretly records an internal meeting with the employer, the general rule established by case law is that if the recording was taken when all parties were present, it may be admissible if the employee can show that it is evidence that is relevant to the issues in dispute. Any recording of the private discussions of an employer’s panel (i.e. where the employee is not present) however, will not be admissible on the grounds of public policy.
In relation to what can and cannot amount to misconduct and gross misconduct, this is not a question of law as such but about accepted standards and norms of behaviour. Now obviously these will vary slightly from industry to industry but this is usually where a well drafted disciplinary procedure comes into its own. Most disciplinary procedures will contain a non-exhaustive list of acts which are considered by the organisation to amount to gross misconduct. Some will also include examples of what constitutes “misconduct” and, whilst you cannot account for every eventuality, what is clear from case law is that it is far easier to justify disciplinary action if your procedure specifically prohibits the misconduct in question.
Ms Stockman was dismissed by Phoenix House and subsequently brought and won a claim of unfair dismissal against her former employer in the Employment Tribunal.
As part of the proceedings, she disclosed a covert recording she had taken of an internal meeting.
When it came to assessing her compensation, Phoenix House argued that her compensation should be reduced on a “just and equitable” basis because she had made this recording secretly and they said this was gross misconduct. They argued that her compensatory award (an award that is based on future loss of earnings) and her basic award (an award that is calculated on length of service, age and salary) should be reduced because of her conduct prior to dismissal and that, if they had known about the recording, they would have been entitled to fairly dismiss her for gross misconduct.
The Tribunal did not agree with these arguments and did not reduce Ms Stockman’s compensation because of the covert recording. The Tribunal said she did not make the recording to try and entrap her employer nor did she use it to help her case during the internal proceedings. Also, the Tribunal said that Phoenix House’s disciplinary procedure didn’t set out that making a covert recording as gross misconduct.
Phoenix House appealed to the Employment Appeal Tribunal, arguing that the Tribunal had erred in law in its approach to the question of reduction of compensation, and also argued that covertly recording an internal meeting was a breach of the implied term of trust and confidence by the employee because it is dishonest behaviour.
The Employment Appeal Tribunal did not uphold Phoenix’s appeal but made a number of points and observations.
The Employment Appeal Tribunal said that they didn’t agree that the Tribunal was bound to conclude that it was a breach of the implied term of trust and confidence to secretly record a meeting. They said that employees have various reasons for recording such meetings and that it couldn’t be assumed that they only did so to entrap or gain a dishonest advantage. The Tribunal was right to look at all the circumstances, including the purpose of the recording, the culpability of the employee (she wasn’t told not to record the meeting) and the content of the recording as well.
However, the Employment Appeal Tribunal went on to say that it was generally good employment practice for an employer or employee 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”.
Points to note
Employers can take some comfort in this judgment. If an employee is found to have secretly recorded a work meeting or conversation this is generally going to amount to misconduct, entitling the employer to take disciplinary action.
However, sometimes, as in this case, the employer may not find out until a much later date what the employee has done. Our advice is therefore for employers to always be alert to the chance that an employee may be using a mobile phone or similar device to record a meeting and, most importantly, to follow a fair and proper procedure whenever work issues arise – whether you are dealing with a grievance or disciplinary matter. By dealing openly and fairly with any work problems, even if a covert recording is made, it will not contain anything damaging.
Action to take
- Add “covert recording of meetings” to the list of instances of gross misconduct in your disciplinary procedure.
- Reinforce this by expressly stating that any recording is prohibited at the outset of a meeting.
- Alternatively, consider providing your own audio recording equipment and asking all parties if they agree to the recording being made and then shared (confidentially) between the parties.
Case reference: Phoenix House Ltd v Stockman  7 WLUK 75 (05 July 2019)
This article was written and researched by Miranda Amos, Solicitor at our Salisbury Office. Miranda advises clients across Hampshire, Wiltshire and Nationwide.
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