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Covert recordings

The Employment Appeal Tribunal in the case of Phoenix House v Stockman has considered whether it is misconduct for an employee to make a covert recording at work.

Background

The Claimant worked for Phoenix House (“the Company”) as a financial accountant. Following a restructure of the business she accepted a more junior role of payroll officer to avoid redundancy.

The day after starting her new role, the Claimant complained to her manager that she was being treated differently by the Director of Finance and the restructure process had been biased against her. She said that another colleague (“Mr M”) agreed with her. The Claimant’s manager said that he would investigate her concerns.

Later that day, the Claimant’s manager spoke to the Director of Finance. During that meeting, the Director of Finance asked to speak to Mr M. The Claimant walked into the room where the meeting was taking place and demanded that the Director of Finance tell her what the conversation was about. The Claimant was asked to leave the room twice before she eventually did so.

Later that day, a Human Resources representative met with the Claimant. It was this meeting that was covertly recorded by the Claimant. During the meeting, the HR representative told the Claimant that she would be subject to disciplinary action for interrupting the meeting and refusing to leave when requested to do so by the Director of Finance.

After a long grievance and disciplinary procedure, the Claimant was dismissed and she brought a claim for unfair dismissal (amongst other claims).

During the tribunal proceedings, the existence and transcript of the covert recording was disclosed by the Claimant. This was the first time the Company became aware of the recording’s existence.

The unfair dismissal claim was upheld by the Employment Tribunal but it decided to reduce the Claimant’s compensation by 10%. This was to reflect the low chance that the Claimant could have been dismissed in any event because of her covertly recording the meeting between herself and the HR representative.

The Company appealed. It contended that the Employment Tribunal had erred in its approach as the compensation should have been reduced to £0. This was on the basis that secretly recording the meeting with HR “without pressing justification” amounted to misconduct and the Claimant would have been dismissed if it had known.

Decision

The Employment Appeal Tribunal rejected the Company’s appeal. It observed that an intention to make a recording of a meeting should be stated by an employee from the outset and failure to do so would usually amount to misconduct, except in the most pressing circumstances. The tribunal is therefore required to consider why the recording was made covertly as the reasons could range from attempting entrapment to guarding against misrepresentation.

Comment

The Employment Appeal Tribunal noted that employers do not usually list “making covert recordings” as examples of gross misconduct in their disciplinary procedures. This may be a practical point worth considering. Also, where recordings are not permitted, this could be stated in procedure documents and at the beginning of any investigation, disciplinary or grievance meeting and the employee can be asked to confirm that they are not doing so. By taking these steps, if a claim was then brought and a covert recording disclosed, this could help to reduce any compensation awarded.

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