Author: Debra Gers
The EAT (Employment Appeal Tribunal) has recently considered the issue of an employee's covert recording of a meeting with HR and held that there are various circumstances when it would be acceptable for an employee to covertly record a meeting without that behaviour constituting misconduct. Also relevant is the employer's attitude to covert recordings and whether or not, for instance, any prohibition on recording is set out in the relevant HR policies.
In the case of Phoenix House Limited v Stockman, the EAT considered the issue of an employee's covert recording of a meeting with HR and the implications of this when assessing compensation. In an interesting judgment, the EAT held that that there are various circumstances when it would be acceptable for an employee to covertly record a meeting without that behaviour constituting misconduct.
Background
Ms Stockman worked in the Finance Department at Phoenix and after a restructuring exercise in 2013 her role was redundant. She successfully applied for, and accepted, another position but her working relationship with the Director of Finance, Mr Lambis, became strained. She had a meeting with HR and covertly recorded that meeting. Ms Stockman raised a grievance about various matters, disciplinary proceedings were pursued against her and a mediation meeting between her and Mr Lambis was unsuccessful. The head of HR concluded that Ms Stockman had a mistrust of senior management and that the working relationship had irretrievably broken down. Ms Stockman was dismissed.
She pursued a number of claims at the Employment Tribunal: "ordinary" unfair dismissal, unfair dismissal and detriment for making public interest disclosures (“whistleblowing”), race discrimination and victimisation and breach of contract. It was only during the Employment Tribunal proceedings that Phoenix became aware of the covert recording.
The Employment Tribunal subsequently made a basic award of £947, a compensatory award of £9,709 and an award for injury to feelings with interest of £5,110. In reaching these figures the Employment Tribunal made a deduction of 30%. This figure included a 10% reduction to reflect Ms Stockman's conduct in making the covert recording. The Employment tribunal found that the covert recording was made while Ms Stockman was flustered and she did not make the recording for the purposes of entrapment.
EAT proceedings
There were various appeals to the EAT by both parties. For instance, Ms Stockman appealed against the Employment Tribunal's decision not to order re-instatement or re-engagement. One element of Phoenix's appeal related specifically to the Employment Tribunal's approach to the covert recording. Phoenix argued that if it had known about the covert recording at the time it would have dismissed Ms Stockman for gross misconduct and her compensation should be reduced to nil. Further, the covert recording of a confidential conversation in the absence of a pressing justification was a breach of the implied term of trust and confidence. It is dishonest conduct designed to obtain an advantage for the employee and place another at a disadvantage. As such, Phoenix could not have kept Ms Stockman in employment.
Whilst the EAT considered a range of issues on appeal, what is of particular interest to employers is the specific consideration given to the issue of covert recordings.
The EAT considered in particular the purpose of a covert recording and said: "In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere."
Depending on the reasons for the covert recording therefore, it will not necessarily be misconduct undermining trust and confidence.
In relation to determining gross misconduct, the EAT said it was necessary to consider the employee's blameworthiness. This would include such factors as whether or not the employee had lied about making the recording, had been told that a recording should not be kept, whether the meeting included confidential business or personal information or whether it was an inexperienced or distressed employee who did not consider the implications of making a covert recording.
Looking at Ms Stockman's case, she recorded a single meeting about her own position, no confidential information was involved, no other people were discussed and the Employment Tribunal found that there was no intention of entrapment when making the covert recording. It also found that there had been no breach of the implied trust and confidence. The EAT held that it was for the Employment Tribunal to assess what is just and equitable on the facts in relation to assessing compensation and the Employment Tribunal's approach was sound.
Interestingly, the EAT also considered that the employer's attitude to covert recordings will be relevant in deciding if it breached the implied term of trust and confidence (covert recording was not covered in Phoenix's disciplinary policy). The EAT commented that: "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."
Finally, the EAT stated that is "good employment practice" for an employee or employer to say if there is any intention to record a meeting save for the most pressing circumstances and it will generally amount to misconduct not to do so.
Comment
There is a difference of opinion amongst employers about whether recording disciplinary and grievance meetings or appeals is helpful or not. Some consider that recording meetings is helpful as it records everything that is said especially as even a comprehensive note may not accurately capture everything discussed. Others consider that recording meetings can unnecessarily complicate matters and may intimidate witnesses.
Most people have mobile telephones which are capable of making a recording very easily and covert recordings of meetings are an increasing concern for employers.
If the decision is made that recordings of meetings whether, overt or covert, is not permissible it is essential to ensure that this is reflected in the relevant HR policies and in particular, that recording constitutes gross misconduct. The issue should also be covered in employment contracts.
If, on the other hand, recording is permissible, this should still be referred to in the relevant HR policies and even more importantly in employment contracts. The contractual provisions should include details of the circumstances when recording is permitted, for instance, only with the express permission of the organisation and any individual being recorded. It is also important to provide that any recordings should not be broadcast or uploaded to social media and that the recordings constitute confidential information that belongs to the organisation and that any intellectual property rights are assigned to it.
