Making a covert recording is an act of misconduct - Phoenix House v Stockman

Except in the exceptional circumstances, it will be misconduct for an employee to make a covert recording at work.

Facts

Mrs Stockman, a Russian national, worked for the Respondent, a charity which provides support to people with drug and alcohol problems, between March and November 2013 before being dismissed. In 2013 there was a restructure within the Respondent’s organisation and the proposed removal of the Claimant’s post. Various alternative offers of employment were made and the Claimant accepted a move to payroll officer.

In May 2013, the Claimant made a complaint, including that the restructuring process had been biased against her. This was investigated and during this process the Claimant was subject to disciplinary proceedings. The Claimant brought a grievance, which was unsuccessful and the Claimant was subsequently dismissed due to an irretrievable breakdown in their relationship.

The Claimant brought an Employment Tribunal claim for unfair dismissal, whistleblowing, discrimination, victimisation and breach of conduct. The unfair dismissal, whistleblowing detriment and victimisation claims succeeded, and the Employment Tribunal (EAT) allowed an appeal on these points.

During the appeal, the Claimant disclosed a covert recording she had made during her employment; a recording of a meeting to discuss the complaint she had made and which was therefore central to the issues surrounding her eventual dismissal. The Respondent was unaware of this recording.

The Respondent contended on appeal that had it known about the recording at the time, it would have dismissed her for gross misconduct at the time of discovering the covert recording, as this conduct undermined the trust and confidence in the employment relationship, and that her compensation for unfair dismissal should be reduced on ‘just and equitable’ grounds to reflect the pre-dismissal misconduct of making a covert recording.

Outcome 

The EAT found that, without pressing justification, making a covert recording is to be classed as misconduct. The EAT decision contained observations on the circumstances in which covert recordings can be misconduct and where it could be acceptable, i.e. where there is a “pressing justification”. It made distinctions between recordings during a meeting where records and/or minutes are regularly kept, and records of a private and sensitive meeting that should be kept confidential.

Implication for Employers 

This judgement is clear in determining that, unless in exceptional circumstances, it will be misconduct for an employee to make covert recordings. Here the recording was made by the Claimant before dismissal, but was not uncovered until after her dismissal, and was not the reason for dismissal.

It has therefore not been tested whether an employer could reasonably dismiss for misconduct on finding out about a covert recording and whether a dismissal on those grounds would be upheld as fair and reasonable. It is worth noting the EAT's observation that employers rarely list covert recording as an example of gross misconduct in disciplinary procedures.

It is good employment practice for employer or employee to say if there is any intention to record a meeting, and it is generally misconduct not to do so, except in the most pressing of circumstances. As an employer you should state at the start of meetings as a matter of course, especially meetings surrounding disciplinary and grievance matters, that recordings are not permitted.