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Julie Dunane CG Professional

Can Covert Recordings Constitute Gross Misconduct?

Julie Duane, Solicitor Advocate at CG Professional.

A notorious dilemma for employers conducting disciplinary hearings has always been the question of covert recordings and whether they constitute an act of misconduct.  In the recent case of Phoenix House v Stockman, the EAT was asked to determine whether it is misconduct for an employee to make a covert recording at work.

THE FACTS

The case involved a financial accountant, Mrs Stockman who worked for the charity Phoenix House.  The circumstances leading to her dismissal hearing surrounded her perception of her treatment during a restructuring process.  During one of those discussions and whilst liaising with the Head of HR she covertly recorded the meeting which became a central turning point in relation to this case.  Notably, the individual did not disclose this recording during the dismissal process and only provided this evidence when she presented her unfair dismissal claim to the Tribunal. 

At First Instance Mrs Stockman’s claim was successful.  This was subsequently appealed to the EAT (Employment Appeal Tribunal) by Phoenix House who claimed that the Tribunal’s approach to the deductions was not just inequitable. Phoenix House claimed that the Tribunal’s approach failed to consider the Polkey principal to reflect the pre-dismissal conduct in making the covert recording.

EAT DECISION

The Respondent’s appeal was dismissed as the EAT concluded that the Tribunal had applied the correct approach in this matter.  The EAT concluded that there are several reasons why a covert recording may have been taken, which will not always be to entrap or gain a dishonest advantage over the employer.  Sometimes a recording can be taken by an employee in order to ensure that a fair reflection of the notes and or meeting has been represented and has not been misconstrued by either party. 

However, the EAT did go on to give several observations in respect of the covert recordings and when this may result in misconduct. Whilst the EAT noted that Tribunals are not bound to conclude that a covert recording undermines the trust and confidence, they did advise that this is very much fact sensitive.  They, therefore, concluded that it is:

“Good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances – and it will genuinely amount to misconduct not to do so”.

A Court may also consider the following in order to determine the purpose of the recording: –

  1. whether or not this is to entrap or misrepresent matters;
  2. Where an employee is told a recording must not be made and they then lie about it; or
  3. What has been recorded? Is this something which would normally be kept and shared or is this something which is highly confidential. 

Whilst in this particular case the Tribunal held Mrs Stockman had not recorded the meeting to manipulate or entrap the employer and there was no confidential information placing other people at risk, it was found that should these factors become apparent in other cases then this may be something which could constitute misconduct. 

ACTIONS FOR EMPLOYERS

In light of this case, employers may wish to review their current disciplinary policy to include a reference to covert recordings on either misconduct or gross misconduct in the event that this could be viewed as a breach of an implied term.  Whilst this is not a Carte Blanche for any covert recording to constitute misconduct, it may give an opening to employers to explore this should employees be seen to be manipulating or misusing this information to their own advantage. 

It would also be sensible for employers to ask at the commencement of a meeting if the employee intends to record this and to make it clear that if they do so secretly then this may constitute gross misconduct. 

If you have any questions regarding covert recordings or an employment law query, please do not hesitate to contact a member of the CG Professional Team who will be more than happy to help.