Covert Recordings

When advising on employment matters, we often encounter situations where an employee has secretly recorded a meeting or event at the workplace that they wish to use as evidence.

A recent case has been considered by the Employment Appeal Tribunal (EAT) which has looked into the effect that the covert recordings could have on an employee’s claim. In this instance, the EAT found in favour of the employee and ruled that the act of covert recording did not affect the employee’s claim or its value.

The case of Phoenix House Ltd v Stockman involved a financial accountant who had successfully claimed unfair dismissal following unfair treatment during a restructuring process. Prior to her dismissal, the employee had covertly recorded her meetings with HR and the fact she had done so was disclosed during the course of the hearing.

The Employer (Phoenix House) went on to appeal the level of compensation awarded by the Tribunal as they were of the view that it should be reduced as a result of the employee’s conduct. The employer argued that the compensation should be reduced to nil as the covert recording was a breach of the implied term of trust and confidence and had they been aware of the recording the employee would have been dismissed at that point.

The Employment Appeal Tribunal upheld the Tribunal’s original decision however when doing so they gave interesting commentary and guidance surrounding the issues of covert recording. 

In this day and age, the EAT recognised that it is extremely easy to record covertly with the use of smartphones and other such devices and is not an uncommon practice to do. 

Therefore the EAT set out a number of points to consider when dealing with the effect of covert recordings on a claim:

1.   The purpose of the recording. The EAT stated that “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 accusation or an investigation; on enable the employee to obtain advice from a union or elsewhere” 

2.   The employee’s blameworthiness. The EAT also explained that factors such as whether the employee lied about the recording or told them they should not be recording should be considered. 

3.   What has been recorded? It should be considered as to whether the meeting was of a confidential nature or involved personal information or if it was a meeting that would have ordinarily been shared or open. 

4.   Evidence of the employer’s attitude to that type of conduct. For example, if the employer’s policy makes clear that cover recording is gross misconduct or they had clearly communicated that this would not be acceptable.   

On a practical note for employers, you should make it clear at the outset of any meetings whether you are happy for an employee to make a recording of the meeting and seek confirmation as to whether they are doing so.

In addition, it could aid employers to include covert recordings of serious misconduct within any disciplinary or grievance policies. This will assist an employer in the event they found themselves in a similar situation to that of the case of Phoenix House v Stockman.