Covert recordings by employees may affect compensation at employment tribunal and may be found to be misconduct. According to ACAS just because covert recordings made are 'very distasteful' or 'discreditable' does not mean they are inadmissible as evidence.

In the recent EAT case of Phoenix House v Stockman it was found that it was generally misconduct for employees to make covert recordings at work except in the most pressing of circumstances.

Phoenix House v Stockman

  • Following a restructure, Ms Stockman’s post was removed and she obtained a more junior role. She then complained to Mr Betha (Head of Finance) that Mr Lambis (Finance Director) had been treating her differently and that the restructure was biased against her. A colleague supported her concerns.
  • Mr Lambis met with Mr Betha and the colleague to discuss the matter. Ms Stockman interrupted the meeting, demanding to know what was said and refused to leave when asked.
  • Later that day, Ms Stockman secretly recorded her meeting with HR, in which she was told she would be disciplined for her earlier conduct. The recording only came to light during her tribunal claim.
  • Ms Stockman lodged a grievance, complaining that Mr Lambis had unlawfully harassed her and she could no longer work with him. The disciplinary offence was upheld and the grievance dismissed.
  • Following an unsuccessful mediation, a HR representative wrote to Ms Stockman, inviting her to a meeting three days later. The HR representative found that the employment relationship had irretrievably broken down and summarily dismissed Ms Stockman.
  • Ms Stockman claimed for unfair dismissal at Tribunal.

Tribunal decision

  • The dismissal was unfair.
  • The recording was not carried out with the purpose of entrapment or to record confidential information about the business but because Ms Stockman felt flustered at the time. The content of the recording was relevant to the issues in the case.
  • The compensatory award was only to be reduced by 10% to reflect her conduct, not to nil as the employer wanted.

EAT decision

  • The EAT upheld the Tribunal’s decision and dismissed the employer’s appeal which was made on the grounds that they would have dismissed Ms Stockman for gross misconduct if they had known she had recorded them and therefore her award should be nil.
  • The HR representative had arranged ‘a hasty and unsatisfactory process’ which the EAT found indicated a loss of patience with Ms Stockman due to the allegations she had made.
  • It is good practice for parties to announce that they are making a recording but the purpose, the extent of blameworthiness and evidence of the attitude of the employer are all factors taken in to account when deciding whether a covert recording by an employee amounts to gross misconduct and ultimately, whether it is admissible at Tribunal.

Comment

  • Covert recordings by employees are likely to increase due to the advancement of technology. This may give rise to data protection issues in relation to those individuals who have been covertly recorded.
  • Covert recordings will usually be deemed misconduct but not always gross misconduct and tribunals will give regard to the circumstances, such as the employees intention, and damage done to the employer in each case.
  • Employers may want to review their disciplinary policy to include covert recordings as a gross misconduct offence to provide employees with clarity on the topic and the expected response from their employer if they were found to have made covert recordings.
  • Employers should maintain professionality at all times and be aware that even after meetings have ended they may be being recorded and any comments made could potentially be deemed as admissible in any subsequent tribunal proceedings.
  • Private discussions between Management should not be held in the same room and Managers should be professional at all times in case they are being recorded.