Question of the month: can an employee make a covert recording?

Making a covert recording could be gross misconduct in some circumstances but the recording may be admissible in the employment tribunal

It is a straight-forward matter nowadays for most people to make an unobtrusive recording of a conversation on a mobile phone. Even where an employer has clear rules in place that meetings and calls should not be recorded, there is no guarantee that an employee will not be covertly recording what is said.

We are often asked what an employer can do about this. The safest approach is perhaps to assume that a recording is being made and to try to ensure that discussions remain reasonable, fair and non-discriminatory. However, employers can take steps to make clear in policies and rules that covert recordings are not permitted and that making one will be a disciplinary matter. This can also be restated and minuted at the outset of meetings.

A recent case has helpfully considered when a covert recording might be gross misconduct as a breach of the implied term of mutual trust and confidence. This was a key question for the tribunal in deciding whether to reduce the claimant's compensation on the basis of her contributory fault and because she would have been dismissed in any event if the employer had known about the recording.

Case details: Phoenix House v Stockman

Ms Stockman worked in the finance department of a charity, Phoenix House. As part of a restructure, Ms Stockman's role was deleted and she was appointed to a more junior role. Ms Stockman raised concerns that she had been treated differently to her colleagues in the restructure. She interrupted a meeting between colleagues about this complaint, refused to leave the room and demanded to know what had been said. Subsequently, she made a covert recording of a meeting with HR. HR made clear that her conduct in interrupting her colleagues' meeting would be a disciplinary matter. Ms Stockman went off sick and raised a grievance, including a complaint that she had been harassed and that the employer had not provided her with a safe place or system of work under health and safety legislation.

The employer attempted to resolve the situation through mediation. HR invited Ms Stockman to a further meeting. Ms Stockman made clear her wish to return to work and to put the grievance behind her.  However, she was summarily dismissed at the meeting.  The HR manager took the view that Ms Stockman continued to distrust senior management and on that basis it appeared that the employment relationship had irretrievably broken down.

Ms Stockman brought claims of unfair dismissal, victimisation and whistle-blowing detriment which were upheld by an employment tribunal. It found that the employer had not acted reasonably in dismissing Ms Stockman for a breakdown in relationship when she had made clear her wish to put the matter behind her and get back to work.

At the remedy hearing, the employer argued that it would in any event have dismissed Ms Stockman for gross misconduct on the basis of the covert recording if it had known about it at the time of the dismissal and that her compensation should be reduced to nil accordingly. The tribunal decided that the basic and compensatory awards should be reduced by just 10% because Ms Stockman had made a covert recording.

Covert recording was not gross misconduct in the circumstances

On appeal, the employer argued that the act of covert recording was in breach of the implied term of mutual trust and confidence because it was dishonest and calculated to put the employer at a disadvantage. The EAT disagreed and commented that making a recording these days "is the work of a moment".  It does not require significant planning and need not be designed to entrap or gain a dishonest advantage. It may have been done simply to keep a record, to protect the employee from the risk of being misrepresented in a later process, or to enable the employee to obtain advice from a union or elsewhere.

The EAT made clear that a tribunal will need to consider all of the circumstances of the case when assessing whether a secret recording equated to gross misconduct. Those circumstances will include the purpose of the employee in making the recording, whether they falsely stated that they were not making a recording, and the type of meeting which is recorded – a covert recording of a highly confidential meeting about the organisation or personal information about another employee would be more likely to be gross misconduct than a covert recording of the employee's own disciplinary meeting (which one might expect to be recorded).

Covert recording will often be misconduct

The EAT commented 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 generally amount to misconduct not to do so". However, that is not the same as saying that covert recording will always be conduct likely to destroy or damage the mutual relationship of trust and confidence between employer and employee and so good grounds for summary dismissal.

When should we allow an employee to record a meeting?

There are further circumstances, not listed by the EAT, which are likely to suggest a covert recording will not be a fundamental breach of contract. For example, employees with disabilities or whose first language is not English may have very good reason to keep a recording of what is said and not to explain to the employer that they are doing so.

It may be a reasonable adjustment to your policies or normal practices to allow a disabled employee to keep a record of a meeting. If employers have concerns about the accuracy of the employee's recording, one solution may be to make an official record of the meeting which is then made available to both parties.

Will the recording / transcripts of a covert recording be admissible in tribunal?

The general rule is that a covert recording of a disciplinary meeting where all parties are present is likely to be admissible in court or tribunal where it is relevant to the issues the tribunal must consider. A covert recording of the private discussions of the disciplinary panel is unlikely to be admissible. However, a recent case in the EAT indicates that there will be circumstances where even private discussions between the panel will be admissible, for example, if the recording reveals the discriminatory motivation of the decision-maker or that the reason for the dismissal is a sham.