This is a frequently asked question by employers and has been considered in the recent Employment Appeal Tribunal (EAT) case of Phoenix House v Stockman.
Amongst other matters that formed part of the appeal in this case, the EAT considered whether or not it would be misconduct for an employee to make a covert recording at work; and held that it would usually be, except in the most pressing of circumstances.
The relevant facts of the case
The Claimant was successful in her claim of unfair dismissal against the Respondent. The Claimant had been dismissed due to an irretrievable breakdown of relationships, which was entirely unconnected to the covert recording, and the tribunal held that this was decision was unreasonable and the process followed to reach the decision was unfair.
In the original Employment Tribunal hearing the Claimant revealed a recording that she had made covertly during her employment of a meeting between her and HR to discuss the Claimant's concerns about an earlier incident with her line manager. The Claimant latterly raised a grievance about this incident.
The Respondent argued that had it known about the recording during the Claimant's employment, then it would have dismissed the Claimant for gross misconduct and therefore it was not just and equitable for the tribunal to make an award of compensation. The Respondent argued that the Claimant's pre-dismissal conduct of making a covert recording without pressing justification should be considered gross misconduct. Whilst this could not render the dismissal fair (the Respondent not having known about this or relied upon this at the time of dismissal), it could reduce the award payable to the Claimant due to established case law principles.
The EAT rejected the Respondent's attack on the tribunal's approach to reductions; and held that the tribunal was entitled to come to its conclusions on the facts and it did not err in law. It found in the specific facts of this case that the tribunal was correct in making a 30% reduction to the Claimant's award.
Helpfully, the EAT's reasons contained additional observations on some of the relevant factors which should be considered when determining whether or not making a covert recording could be justified, noting that in most instances it would be misconduct if the intent to record the meeting is not expressed.
The purpose of the recording
Did the employee make the recording for the purposes of entrapment or attempted entrapment? Or was the recording obtained to ensure the employee is not misrepresented when faced with an accusation or investigation?
In this case it was viewed that the employee was not attempting to entrap her employer. This was because despite obtaining the recording, the Claimant did not attempt to use it during her subsequent grievance or raise it during the proceedings which led to her dismissal.
The ease with which an employee can create a recording
The EAT noted that due to modern technology, employees can often make a recording at the tap of button due to the rise of smartphones that they carry with them in their pockets. This can be contrasted with an employee who has gone to a great deal of trouble to make a recording, for example planting a device in a specific location in an attempt to fish for information.
What is recorded
The content of the recording is also to be taken into account. For example, whether the meeting recorded discusses highly confidential business or personal information or information about other people. Contrasted with this is recording a meeting of which a record would normally be kept and shared in any event.
Did the employee know it was misconduct to make a covert recording?
An employee's knowledge that their actions constitute misconduct or gross misconduct is always a relevant factor. The EAT observed that employers rarely list covert recording as an example of gross misconduct on a disciplinary procedure – but, interestingly, added that "this may change". In some circumstances an employee may have asked to record a meeting and the request was refused, therefore they ought to have known a covert recording would constitute misconduct.
The EAT did acknowledge that it is generally accepted that covert recording would amount to misconduct, and that it would be good practice for employers or employees to state at the outset of any meeting if there is an intention to record.
This case highlights the importance for employers to have a well written disciplinary policy and procedure and to ensure managers are effectively trained to ensure proper implementation.
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At Harper Macleod, we can assist with all stages of the creation and implementation of the disciplinary process, as well as bespoke training for managers. Please get in touch to discuss your requirements.