The Employment Appeal Tribunal recently considered the issue of covert recordings made by employees in meetings with their employer. The case explored whether a claimant’s compensation should be reduced on account of the fact that a covert recording had been made without the employer’s knowledge.

Summary 

When an employee secretly records an internal meeting or hearing with an employer, the general rule is that the recording of any parts of the meeting where the employee is present may be admissible before a tribunal if the tribunal believes the information is relevant. However, the act of covertly recording a meeting may amount to misconduct, but it will depend on the employer’s disciplinary rules, policies and procedures.  

Unfair dismissal compensation may be reduced or extinguished where an employee’s (mis)conduct before dismissal was such that it would be just and equitable to reduce it and/or where the employee’s conduct has contributed to the dismissal. 

In the case of  Phoenix House v Stockman the Claimant worked as a financial accountant for Phoenix House, a charity. She complained of unfair treatment during a restructuring process and covertly recorded a meeting with the Head of HR. This fact was only disclosed during her successful unfair dismissal claim. Phoenix House appealed against the award of compensation, arguing that it should be reduced to reflect the Claimant’s pre-dismissal conduct in making the covert recording on ‘just and equitable’ grounds. 

While the EAT dismissed the appeal, it made the following general comments on covert recordings:  

  • It is good employment practice for an employee or employer to say if there is an intention to record a meeting. If such a declaration is not made, it is generally held to be misconduct, save for the most ‘pressing of circumstances’.
  • The purpose of making a covert recording may vary from attempting entrapment to guarding against misrepresentation. The nature of what is recorded may also be relevant, such as recording when a meeting took place, or be intended to capture highly confidential or sensitive information relating to the business or other people.

In this case, the tribunal found that the Claimant had not recorded the meeting to entrap her employer, there was no confidential information involved and other people were not discussed; therefore, no breach of the implied term of trust and confidence had occurred.  

Practical Points / Impact on Employers

Employers may wish to consider including covert recording in disciplinary procedures as an example of gross misconduct.  It is a good idea for employers to ask, at the start of a meeting, if employees are recording it and make clear that if they do so secretly,  this may be regarded as gross misconduct. While the EAT has confirmed that it will generally amount to misconduct, it will not necessarily amount to gross misconduct; all the circumstances will need to be considered including the employee’s reason for making a secret recording and any damage done to the employer as a result of the information being recorded without its knowledge.

This article was co-written by:

Tracey Robb

CEO
Trivium London Consulting
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Tracey Robb

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Jonathan Naylor

Partner
SHOOSMITHS LLP
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