In a recent decision handed down
by the Employment Appeal Tribunal in England on 5th July, the court
provided helpful guidance in relation to employees who seek to record meetings
in the workplace.
Given the modern era in which we
live and that recording devices by way of our mobile phones are only a push of
a button away, the opportunity and therefore temptation by any employee to
record a meeting, is obvious.
The present case of Phoenix House –v- Stockman UKEAT
concerned an appeal to the Employment Appeal Tribunal in England.
The Claimant, Ms Stockman was
successful in pursuit of her unfair dismissal claim in the first instance
receiving an award of in and around £10,000.
During the first hearing, the employer became aware for the first time,
that Ms Stockman had covertly recorded a meeting. The employer argued that had they of known about
the recording it would have dismissed the Claimant for gross misconduct.
The Employment Tribunal found
that the Claimant did not make the recording for the purposes of
entrapment. It found that the Claimant
was flustered at the time and uncertain if the device would record. The
Tribunal also found that she did not rely upon the recording as part of the
internal proceedings. Furthermore, the
Employment Tribunal found that the making of a covert recording was not
specifically set out in the Respondent’s disciplinary policy as amounting to
gross misconduct. In the consideration
of whether the Claimant’s award should be reduced by virtue of the covert
recording, the Tribunal in the first instance did reduce the award by 30%.
However, the employer had argued
that the reduction of 30% was not enough in the circumstances. It stated that any covert recording of a
confidential conversation in the absence of a pressing justification was a
breach of the implied term of trust and confidence and that any unfair dismissal
award should be reduced to nil.
The Employment Appeal Tribunal,
in rejecting the employer’s argument, stated that given recording devices were
so readily available by way of mobile phones, it is no longer straightforward
to draw the conclusion that the recording would have been undertaken to entrap
or otherwise gain an unfair advantage. The
Employment Appeal Tribunal stated that most people carry with them a mobile
phone which is capable of making a recording and it is the work of a moment to
switch it on. It went on to state that
it did not think that an Employment Tribunal is bound to conclude that a covert
record of a meeting unnecessarily undermines the trust and confidence between
the employer and the employee, to the extent that an employer should dismiss
the employee.
The Employment Appeal Tribunal did
state it would be good practice for an employee or an employer to confirm
whether it was their intention to record a meeting, except for in the most
pressing of circumstances, and it will generally amount to misconduct not to do
so and record the meeting regardless.
In summary, if an employee is
considering recording a meeting within the workplace he should do so with due
consideration and ensure that the circumstances are pressing, as indicated
above. An employer should also be aware
that in such circumstances where they discover that the employee has covertly
recorded a meeting in the workplace, dismissal on the grounds of gross
misconduct may not always be the most appropriate outcome.
It should be noted that whilst this Employment Appeal Tribunal decision is not binding within this jurisdiction (Northern Ireland) it is likely to be highly persuasive.
