The EAT has rejected an employer's argument that an employee's compensation for unfair dismissal should be reduced to nil on the basis that she had secretly recorded a meeting with an HR representative. The EAT held that it will generally be misconduct for an employee to covertly record meetings but it will not necessarily be a breach of the duty of confidence. Whether it is will depend on the purpose and circumstances of the recording.    

Facts

Following a department restructure, the Claimant's role was removed and she obtained a more junior role. She complained to her line manager that the Finance Director had treated her differently and the restructure was biased against her. She said that a colleague agreed with her view. A meeting took place between her line manager, the Finance Director and the work colleague. The Claimant interrupted the meeting and demanded to know what was being discussed and only left following a number of requests to leave. Later that day, she was invited to a meeting with an HR representative, which she secretly recorded. The existence of the recording was not discovered until she was obliged to disclose it in her subsequent Tribunal claim. The Tribunal upheld her claim for unfair dismissal.

The employer argued that had it known about the covert recording, it would have dismissed the Claimant for gross misconduct and that it was not just or equitable to make any award of compensation. The Tribunal found that the recording had been made by the Claimant at a time when she was flustered, rather than as an intention to entrap. She had not used the recording in the internal proceedings with the employer. The employer's disciplinary policy did not give making covert recordings as an example of gross misconduct (and still hadn't been updated to say this by the time of the remedy hearing). Taking all these factors into account, the Tribunal applied a 10% reduction to her compensatory award.

EAT decision

The EAT dismissed the employer's appeal. The EAT rejected the employer's argument that the making of the covert recording amounted to a breach of the implied term of trust and confidence. It noted that whilst historically, a covert recording could only be made with a great deal of trouble, which would suggest that it was done for the intention to entrap or gain an unfair advantage, technological advances mean that it is very easy to make a recording on a mobile phone. Such recordings would not necessarily be made with the intent to entrap or gain an unfair advantage, but may have been done for other (legitimate) reasons, for example, record keeping purposes, to protect the employee from misrepresentation when faced with an accusation or investigation, or to enable the employee to seek legal advice. A covert recording would not therefore automatically mean that there is a breach of the implied term of trust and confidence, and it would be a question of fact for the Tribunal in each case.

Relevant factors for the Tribunal to take into account include (i) the purpose of the recording, (ii) the blameworthiness of the employee (for example, whether they have specifically been told not to make a recording or deliberately lied about the recording compared against a distressed and inexperienced employee who has given no thought to the matter), (iii) what has been recorded (for example, a recording of a meeting that would ordinarily have been recorded as compared to a meeting where highly confidential business or personal information relating to the employer or another employee is discussed), (iv) evidence of the attitude of the employer to such conduct - the EAT noted that in its experience, it is still relatively rare for employers to explicitly state that the making of a covert recording will be an act of gross misconduct in their disciplinary policy.

The EAT also stated that it would be good employment practice for either party to notify the other of an intention to record a meeting save for exceptional circumstances and it will generally be misconduct not to do so.

Comment

The EAT's guidance on the effect of covert recordings is helpful. Employers who feel particularly strongly about this issue may wish to consider explicitly prohibiting it and providing it as an example of gross misconduct in their disciplinary policy. Alternatively, it could make it clear at the outset of a meeting that recordings are not allowed and ask the employee to confirm that they will be not making a recording. This will increase the chances of a covert recording being serious enough to amount to a breach of trust and confidence although it will still be necessary to consider the purpose and circumstances of the recording.

Phoenix House Ltd v Stockman, EAT