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Is it misconduct for an employee to make a covert recording at work?

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Covert recording of meetings by an employee is becoming an ever more common issue, and one recently considered by the Employment Appeal Tribunal (EAT) in Phoenix House v Stockman.

The circumstances in which this issue reached the tribunal are somewhat convoluted. Essentially, the Claimant was dismissed for ‘some other substantial reason’, being a breakdown in working relationships following allegations of harassment made by her against colleagues. The Claimant claimed, among other things, unfair dismissal and was successful in this claim. During the ET proceedings, it came to light that the Claimant had covertly recorded a meeting with her employer prior to her dismissal. The employer argued that this was misconduct, for which the Claimant would have been dismissed had it been aware of the matter at the time, and therefore compensation awarded in respect of her unfair dismissal claim should be reduced. The tribunal did apply a reduction, although not a significant one. The employer, Phoenix House, appealed on this point.

The EAT noted that generally, it is good practice to advise those present if a meeting is being recorded and opined that not doing so will likely be an act of misconduct, although it acknowledged there may be rare cases where, in ‘pressing circumstances’ not doing so is justified.

However, as with cases of misconduct generally, all the circumstances must be considered. The EAT noted several factors which it considered relevant in relation to covert recordings and whether or not the making of such could support a subsequent allegation of misconduct.  These were:

  • The purpose of the recording

The EAT noted from experience that there are numerous reasons why an employee may covertly record a meeting. It might be to gain an advantage dishonestly or to entrap the employer, but there may be other reasons such as simply having a record of the meeting, to avoid being misrepresented if there is a later accusation based on something said during the meeting, or for the purposes of taking advice.

  • The content of the recording

The EAT also noted there is likely to be a difference between a recording of a meeting which concerns only the employee, such as a meeting about their performance or concerns they are raising with their work, and a meeting during which there is discussion of highly sensitive or confidential information or information about others. It also noted that if the meeting was one where a record would have been kept anyway (such as minutes or a written summary) recording the meeting may be of less concern.

  • The blameworthiness of the employee

The extent to which the employee deliberately sought to record a meeting dishonestly may also be of relevance. The employee may not have realised that recording a meeting was not permitted, or thought that doing so for their own recollection was not an issue.

  • The attitude of the employer

The seriousness with which the employer considers recording meetings is a further factor which may be important, which is related to the blameworthiness of the employee as above. Points to consider in this regard include, for example, whether covert recording is listed as misconduct in the employer’s disciplinary policy, whether the employer has explicitly forbidden recording and so on.

In the case at hand, the EAT took the view that the employment tribunal had made several findings which were significant in considering the circumstances around the recording. These included:

  • The recording was not made for the purpose of entrapment;
  • The recording was not used by the employee during any internal proceedings;
  • A point in the recording was in fact detrimental to the employee’s case before the tribunal;
  • Covertly recording meetings was not specifically listed as misconduct in the Respondent’s disciplinary policy (nor had it been amended since the issue came to light during the tribunal proceedings).

The EAT noted that the tribunal was entitled to assess all of the circumstances and reasonably reached the conclusion that, in this case, the recording was of one meeting which considered the employee’s position only and did not involve information about anybody else, which was not so serious as to justify a significant reduction in compensation.

There are some key points which employers can take away from this case:

  • If covertly recording meetings is considered to be serious misconduct within their business, this ought to be made clear in a disciplinary policy;
  • It should be made explicit where the employer may permit a meeting being recorded and when they are not permitted to be recorded;
  • If an employee does make a covert recording and is being disciplined for misconduct, regard should be had for all of the circumstances rather than immediately assuming dismissal is a reasonable sanction.

CONTACT OUR SPECIALIST EMPLOYMENT LAW SOLICITORS IN GLASGOW, SCOTLAND

For more information and guidance on this or any other employment law issues, please get in touch with a member of our Employment team today.

This is not legal advice; it is intended to provide information of general interest about current legal issues.

 

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