In the age of the smartphone, making audio or video recordings is now as easy as two taps of a screen. Leave your phone in your pocket or handbag and no one around you would be any the wiser.

The Employment Appeal Tribunal (EAT) recently dealt with the issue of an employee making a covert recording during a HR meeting in the case of Phoenix House Limited v Stockman and the case sets out some interesting points for employers to consider.

Background

Mrs Stockman was a payroll officer for Phoenix Housing. Following an internal restructure she became distressed and believed she had been treated differently throughout the process.

Following an incident at work, as a result of her complaints in relation to the restructure, Mrs Stockman attended a meeting with HR, which she covertly recorded on her mobile phone. This was not disclosed and Phoenix Housing only found out about it during the subsequent employment tribunal litigation.

Mrs Stockman was ultimately dismissed and brought an unfair dismissal claim. The tribunal decided that she had been unfairly dismissed; however her tribunal award was reduced by 30%, 10% of which was attributed to the covert recording.

The tribunal found that the likelihood that Mrs Stockman would have been dismissed fairly for making the covert recording, had Phoenix Housing been made aware of this during the disciplinary process was low, which justified only a 10% deduction.

Phoenix House appealed the decision, arguing that the covert recording was a breach of the implied duty of trust and confidence, which amounted to gross misconduct. If they had known about it they would have dismissed her - the tribunal award should therefore be reduced by 100%. It was this point on which the EAT focused.

Decision

The EAT upheld the employment tribunal's decision to only apply a 10% reduction of the award in relation to the covert recording. When determining the severity of the misconduct the following factors were considered:

  • Mrs Stockman had been confused and flustered in making the recording, not entirely sure it would be successful;
  • the content of the meeting had not been highly confidential and would have been transcribed in any event;
  • the recording contained elements which were detrimental to her own case.

The EAT outlined that when deciding whether a reduction of an award was appropriate, the test is whether or not the employee would have been fairly dismissed had the employer known about the alleged misconduct.

The answer will be dependent on the individual facts of the case and will also turn on the severity of the alleged misconduct. There may be cases where the employee is confused and vulnerable seeking to prevent misrepresentation. Alternatively, there may still be malicious employees seeking to steer a meeting in order to entrap their employer.

The motive of the employee will be key, as well as their knowledge of whether their actions were acceptable or not. If an employer specifically states the meeting cannot be recorded, or the employee lies about the recording, this will affect the determination.

Impact of technological advances

The EAT discussed the fact that covert recording equipment is now readily accessible to employees, with the vast majority of individuals now carrying mobile phones with audio and video recording capabilities. This has resulted in it not being uncommon to find employees have recorded meetings without the knowledge of their employer.

The motives of employees have also changed. Given the relative ease in which such recordings can be made, there is now more of a desire for employees to protect themselves from misrepresentation or to allow them to take independent advice later on, rather than necessarily being influenced by pre-meditation and malice.

In practice

On a practical level employers may want to address the issue of recordings in a policy and prior to any meetings, ensuring that no parties are recording or, if they are, everyone is aware of the fact and so on an even footing.

Recordings of confidential meetings in which highly sensitive information may be discussed would be captured by normal confidentially rules and the duty of trust and confidence owed by employees.

If you have any queries on disciplinary processes, or covert recordings, please get in touch with your usual Brodies contact. Users of Brodies Workbox can also access more information and template policies on the Discipline and Problem Solving and Disciplinary Investigations pages.