An increasingly frequent question facing employers and employees alike – Leah Caprani considers the implications of the Employment Appeal Tribunal’s most recent guidance in Phoenix House v Stockman regarding employees making covert recordings in the workplace.
It has been established for some time that whilst the act of an employee covertly recording a meeting at work may amount to misconduct (depending on the particular circumstances), the recording itself will generally be admissible as evidence before an employment tribunal if the tribunal believes it to be relevant.
In this case, a recording made by the Claimant (Ms Stockman) was admissible as evidence in respect of her successful claim of unfair dismissal. But on appeal to the Employment Appeal Tribunal, her employer (Phoenix House) argued that Ms Stockman’s compensation for unfair dismissal should be reduced to nil, on account of her pre-dismissal conduct in making the covert recording, which – they argued – would have justified her dismissal on grounds of misconduct had they know of it at the time.
Ms Stockman was employed by Phoenix House as a financial accountant. She felt that an internal restructuring process was biased against her and that she had been treated differently to other employees by the Finance Director, so she made a formal complaint to the Head of Finance. The Finance Director and Ms Stockman’s colleague (who earlier corroborated her claims) were invited to an informal investigation meeting, which Ms Stockman forcefully interrupted and refused to leave, despite being asked to do so. When she did eventually leave she was later invited to a separate meeting with HR, which she covertly recorded.
She was informed that her actions in interrupting the meeting and failing to leave would be made the subject of disciplinary action and she lodged a grievance citing an unsafe place or system of work and harassment by the Finance Director. Her grievance was not upheld and Ms Stockman was issued with a 12-month formal written warning. Following a formal appeal procedure and an unsuccessful mediation process, Ms Stockman was finally dismissed as her working relationship with the Finance Director was said to have broken down irretrievably.
The Employment Tribunal upheld Ms Stockman’s claim for unfair dismissal holding that she had not been given enough notice of the dismissal hearing, but reduced her compensatory award by 10% due to her misconduct in making the covert recording, which she had only disclosed during the Tribunal proceedings. Phoenix House then appealed, arguing that Ms Stockman’s compensation should be reduced to nil as she would have been dismissed for gross misconduct had the covert recording been disclosed during her employment.
The Employment Appeal Tribunal upheld Ms Stockman’s unfair dismissal claim and rejected Phoenix House’s appeal, on the basis that there was no policy stating that meetings could not be recorded or that covert recording amounted to a disciplinary offence. The Tribunal also made it clear that an employee’s reasons for making such a recording will be relevant when considering whether the act amounts to gross misconduct and that a vulnerable employee seeking to keep a record or to guard against misrepresentation is very different from a highly manipulative employee seeking to entrap the employer – they were satisfied that there Ms Stockman had not sought to entrap her employer in that way.
Consideration must also be given to whether an employee has been specifically told not to record and whether the nature of the material recorded is highly confidential or personal to the business or others.
Employers should carefully consider whether they wish to define covert recording as a disciplinary offence, remind employees that meetings must not be recorded without consent and update their policies and procedures to reflect the same. Alternatively, employers could implement a policy to record all meetings to ensure accurate records are kept, but this must, of course, be weighed against the potential cost and data protection implications of doing so.