In the age of smartphones, which generally tend to have recording facilities, it is not unusual for employees to covertly record internal meetings, including grievance meetings or disciplinary hearings.
The recent Employment Appeal Tribunal (EAT) judgment in Phoenix House v Stockman has addressed whether covert recordings by employees automatically amount to gross misconduct. However, it is also useful for employers to understand whether covert recordings are admissible as evidence against them within employment tribunal claims.
Employers often assume that a covert recording by an employee cannot be used against them. However, the parts of the meeting where the employee was present can be admissible before an employment tribunal if the employment tribunal believes it is relevant. This is entirely at the discretion of the employment tribunal.
In addition, whilst a covert recording of any private discussions of an employer's disciplinary or grievance panel generally cannot be put before an employment tribunal on the grounds of public policy, the employment tribunal may adopt a different view where a claim involves (for example) discrimination and the recording of private deliberations potentially evidences this.
In Phoenix House v Stockman the EAT confirmed that whilst it will generally amount to misconduct for an employee not to inform an employer that a recording is being made, all the circumstances will need to be considered, including the employee's reason for making a secret recording, the employer’s position regarding covert recordings and any damage done to the employer as a result of information being recorded without its knowledge, before it can be concluded that a recording amounts to gross misconduct.
In this particular case, the EAT decided that the recording did not amount to gross misconduct because the employee had not recorded the meeting with the intention of entrapment, but simply for her own records.
It is of course good practise for parties to communicate an intention to record a meeting, however, it is possible that this will not always be the case. Before concluding that an employee is guilty of gross misconduct upon the discovery of covert recording, employers should therefore consider:
- The nature of the information recorded - is it confidential?
- The purpose of the recording - is this simply to assist the employee’s recollection at a later date, is it to avoid the risk of misrepresentation, is it to enable an employee to obtain subsequent legal advice or is it entrapment?
- The extent of the employee's blameworthiness - was the employee warned not to make a recording and/or have they lied about doing so?
- Any evidence of the attitude of the employer to such conduct - does the disciplinary policy address the issue?
In view of the final point above, it is advisable for employers to update their disciplinary policy in order to confirm that covert recording is an example of gross misconduct.
Dionne Dury is an Employment Solicitor at Hatch Brenner on Theatre Street in Norwich. Call 01603 660 811 or email firstname.lastname@example.org