Secret Recordings – Can They Amount to Gross Misconduct?

With the technology available on mobile phones, it is now relatively easy for employees to record workplace meetings secretly. When an employee secretly records a meeting with their employer, the general rule in the UK is that the recording of any parts of the meeting during which the employee was present may be admissible as evidence in litigation if the employment tribunal believes it is relevant to the issues in the case. However, whilst recording a meeting without telling the employer will generally amount to misconduct in the UK, it is less clear whether or not it will amount to gross misconduct entitling the employer to dismiss the employee summarily for cause. In the case of Phoenix House Ltd v Stockman UKEAT/0284/17 (No. 2) the Employment Appeal Tribunal (“EAT”) provided some helpful guidance on secret recordings made by employees and the factors which an employer should consider when determining whether or not such conduct amounts to gross misconduct.

The Facts

The employee in this case, Ms. Stockman, was employed by Phoenix House Limited (“Phoenix House”) as a Financial Accountant. Her post was removed following a restructure, and she obtained an alternative, albeit more junior, role. She complained to her line manager, the Head of Finance, that the Finance Director had been treating her differently and that the restructure was biased against her. She was supported by a colleague and a meeting was held between her colleague, the Head of Finance and the Finance Director, but not Ms. Stockman, to discuss matters. Upon finding out about the meeting, Ms. Stockman interrupted it, demanded to know what was said and refused to leave. The same day she was invited to attend a meeting with the Head of HR at which she was told that she would be disciplined for her conduct. She secretly recorded the meeting. She submitted a grievance which was dismissed and the disciplinary offence was upheld.

Attempts to mediate the dispute were unsuccessful and, although Ms. Stockman claimed that she wanted to put the grievance behind her, her employer’s position was that Ms. Stockman maintained a distrust of senior management and, therefore, the relationship had irretrievably broken down. Ms. Stockman was subsequently dismissed and she brought successful claims in the employment tribunal for unfair dismissal, whistleblowing detriment and victimization. However, the damages awarded to Ms. Stockman were reduced by 30%, including a 10% reduction for secretly recording the meeting with the Head of HR, on the basis that the recording was made without the employer’s consent.

Phoenix House appealed against the decision to the EAT. Its position was that it was unaware of the secret recording at the time it took the decision to dismiss Ms. Stockman, but had it known that Ms. Stockman had secretly recorded the meeting, it would have dismissed her summarily for cause. Against that background, Phoenix House argued that she should not receive any compensation.

The EAT’s View

The EAT dismissed the appeal and upheld the employment tribunal’s view. In the EAT’s view, secret recordings might take place for a variety of reasons e.g. to keep a record, to protect the employee from a risk of misrepresentation, or to enable the employee to take subsequent legal advice, and therefore it does not necessarily follow that they undermine the relationship of mutual trust and confidence. In the EAT’s view, it is not the fact that a recording is made but other factors that should be considered. Therefore, whether or not secretly recording a meeting undermines trust and confidence between employer and employee will depend on a variety of factors:

  • The content of the recording: A meeting in which highly confidential business information is recorded is more likely to amount to gross misconduct as opposed to a meeting concerning an employee of which a record would normally be kept and shared in any event.
  • The purpose of the recording: Was the employee seeking to entrap the employer or, alternatively, was the employee seeking to e.g. keep a record or guard themselves against misrepresentations?
  • The blameworthiness of the employee: Was the employee told not to recording the meeting but did so irrespective of the instruction not to do so? Had the employee not considered the implications of making such a recording because they are inexperienced and/or distressed?
  • The employer’s attitude to such conduct: Is secretly recording meetings identified in the employer’s disciplinary policy as an example of gross misconduct?

The EAT was persuaded that Ms. Stockman had not recorded the meeting with the intention of entrapment and that secretly recording meetings was not identified in the employer’s disciplinary policy as an example of gross misconduct. 

As the EAT commented, it remains good practice for parties to communicate an intention to record a meeting and not to do so would generally constitute misconduct. However, in the UK, it is relatively uncommon for such conduct to be identified as an example of gross misconduct in an employer’s disciplinary policy which would entitle the employer to dismiss the employee summarily for cause.

Practical Tips

We set out below some practical tips and lessons for employers of UK-based employees, following this case:

  • Managers conducting disciplinary or grievance meetings should consider informing the employee at the start of any meeting that no recordings are allowed and to ask employees and anyone who is accompanying them to turn off mobile phones.
  • Mangers should leave the meeting room to conduct their deliberations to avoid these being recorded secretly.
  • Employer’s should review their disciplinary policy and consider including covert recordings as an example of gross misconduct. 

Individuals involved in conducting disciplinary and/or grievance meetings should always remember that covert recordings (regardless of the circumstances in which they have been obtained) may be admissible as evidence in litigation if they are relevant to the case. Therefore, they should avoid making any unguarded comments and behave reasonably at all times.

Article by Weil Gotshal & Manges LLPSimon Gorham

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