Worthingtons Solicitors

Covert recordings in the workplace.

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.

Niall McMullan is a Partner in Worthingtons Commercial Solicitors, Belfast, who regularly advises organisations and employers on employment law issues such as suspension and disciplinary and grievance processes. He can be contacted on 028 90 434015 or email [email protected].

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