Covert Recordings by Employees

With the necessary technology available at the push of a button on a smartphone, it is common to discover that employees have covertly recorded meetings with their employer. What can employers do about this? The recent Employment Appeal Tribunal case of Phoenix House Limited v. Stockman provided some helpful guidance on the issue.

It is important to make clear that a recording of an investigatory meeting or disciplinary hearing will almost always have to be disclosed to the other side and included in the hearing bundle for tribunal proceedings, regardless of how that recording was obtained. Put simply, if a recording like that exists, it will be a highly relevant piece of evidence and a tribunal will want to hear it. That can have advantages for both sides. It may help an employee show that the employer has not accurately noted in its minutes all the key points of a disciplinary hearing, which could render a subsequent dismissal unfair. On the other hand, it may help the employer to show that it has not hidden anything in its own written record of meetings.

However, in Phoenix House the EAT clarified that to covertly record a meeting will generally amount to misconduct on the part of the employee. The key relevance of this is that, in circumstances where there has been a finding of unfair dismissal, a tribunal should then assess the likelihood that the employee would have been dismissed had the employer known of that misconduct and can reduce the award for unfair dismissal accordingly. A reduction in an award won’t always result. For example, a tribunal might fairly conclude that an employee had no choice but to record the meeting simply to ensure that an accurate record was kept and to avoid the employee being misrepresented by the employer. However, if the recording is made for the purposes of entrapping the employer or to gain a dishonest advantage, that could result in a substantial reduction in any award.

Our advice, in the light of this case, is:

1. to make clear, at the beginning of any meeting, that the employee is not permitted to record the meeting (and that it is a disciplinary offence to do so);  and
2. to revisit your disciplinary procedures and include in the list of gross misconduct offences the offence of “recording a meeting or conversation without the employer’s prior consent”.

Not only will that act as a good deterrent to employees adopting this practice in the first place, it will potentially help you avoid a substantial tribunal award.

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