Given the ease in which employees can now secretly record meetings on their mobile phones, incidences of covert recording in the workplace are now a much more common feature of employment litigation. It may come as no surprise, therefore, that there has been a recent Employment Appeal Tribunal (EAT) case discussing this very topic. Helpfully for employers, the EAT found that it will generally be a misconduct issue for an employee to make a covert recording at work.
In the case of Phoenix House v Stockman, the employee was successful in her unfair dismissal claim but during the course of the Tribunal proceedings, it transpired that the employee had covertly recorded one of her meetings with her employer. As part of the Tribunal remedies hearing the employer argued that, had they have known about the recording, they would have dismissed the employee for gross misconduct and as such it was not reasonable for any compensation to be awarded. The Tribunal rejected this argument, but did reduce the compensation by 10% in recognition of the fact that there was a degree of misconduct involved.
The case went to the EAT who rejected the employer’s argument that the employee should not receive any compensation. Instead the EAT supported the Tribunal and upheld the 10% reduction.
There are a few interesting take away points from this case, which help to make sense of the decision. Firstly, there was no intention on the employee’s part to ‘entrap’ the employer or to capture confidential business or personal information. Rather, the recording was more for the employee’s own purposes in a difficult situation. Further the employer in this case had not listed covert recordings as an example of a gross misconduct offence in their disciplinary policy. In light of this case, you might want to consider adding covert recordings to the list of gross misconduct offences when you next review your disciplinary procedures. As the EAT noted, it is currently rare for this conduct to be specifically listed as a gross misconduct offence, but the easy accessibility of recording equipment via smartphones may well make this a more common feature of such policies in future.
The EAT judge in this case made some helpful general comments in relation to the overall position with recording meetings stating that ‘….it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances …..it will generally amount to misconduct not to do so…. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management….. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed’.
Ways you can minimise risks arising from covert recordings.
- It may seem obvious, but just having an awareness of how you are coming across in meetings will minimise any damage to your organisation should an employee record a meeting without your knowledge. This point can be raised with managers as part of general management training.
- It is a good idea to encourage managers to write down in advance the points they are intending to cover in the meeting. That way they will stay on track and minimise saying something that the employee can take advantage of and use against the business should they decide to bring a claim.
- If the employee asks to record the meeting then depending on the meeting it may be sensible to agree to the recording. If you don’t agree to it then you should be alert to the risk that they will try to record anyway and guard against this, for example by asking for their mobile phone to be switched off or left outside the meeting room.
- You may even decide tactically to ask the employee whether they are recording the meeting. The employee may lie and say they are not recording the meeting when in fact it transpires at a later date that they did record the meeting. Active dishonesty of this type in making a covert recording is likely to be viewed more seriously by a Tribunal. In a situation like Stockman, this could well have resulted in a much bigger reduction of the compensation payable. Proven dishonesty could also be more widely damaging to the strength of the employee’s case.
- When you hold disciplinary hearings and adjourn any hearing to have a private discussion, consider taking your discussions to another room to avoid a scenario where you may be ‘caught out’ by the employee having secretly left their mobile phone in the room recording your private discussion and deliberation on the case.
Is it good practice to openly record meetings?
You may decide as the employer to openly record meetings in any event so you have an accurate record of the meeting and also this may deter an employee feeling inclined to covertly record the same meeting. If that is the case it is important you also consider your obligations from a data protection angle. Further, if you are going to take this approach you should make it clear in your policies that you may look to openly record certain meetings (specifying those meetings) and will be seeking the employee’s consent to do so at the relevant time.
It is also worth thinking about the practicalities of the recording, particularly if it is likely that a transcript will be required. Transcripts which are not produced professionally can be the subject of disagreement, and independent, professional transcription will be costly. In longer meetings it may be worth agreeing that a note-taker will produce a summary note in the usual way, with a recording only used to clarify any disputed points in the agreed note.
It is fair to say that the overall message from the EAT decision in Stockman is one of common sense. There is an increasing awareness in society that, although we have the means to record almost all our interactions, both the recordings themselves and the use made of them have to be limited by concerns for the privacy of others. An employer should not expect to be able to hide dubious practices from the scrutiny offered by technology, but employees who seeks to wield a recording smartphone as a weapon should also expect that conduct to have repercussions.