The Employment Appeal Tribunal has recently provided guidance on how employment tribunals should approach evidence which has been covertly obtained by employees recording meetings.

This latest guidance takes into account the current position in the light of the ease with which digital technologies facilitate undercover recording.

Background

In the recent case of Phoenix House Limited v Stockman, a dispute arose when Ms Stockman accused senior management of discriminating against her, and further complained that a departmental restructure was biased against her.

These accusations were supported by a colleague. Ms Stockman interrupted a meeting between senior management and that colleague, demanding to know what was being discussed and refusing to leave. Later the same day, Ms Stockman was invited to a meeting with the HR team, during which she was told that she would be disciplined for her earlier conduct. A grievance was raised by Ms Stockman, which was then dismissed. Following an unsuccessful mediation, and some time off sick, Ms Stockman was summarily dismissed, on the basis that the working relationship between Ms Stockman and Phoenix House had completely broken down.

An employment tribunal found that the dismissal was unfair, and this decision was upheld by the Employment Appeal Tribunal (EAT).

The effect of the covert recording

Where the above set of facts differs from many unfair dismissal claims is that it became apparent during the tribunal proceedings that Ms Stockman secretly recorded the meeting with the Phoenix House HR team during which she was told that she would be disciplined.

Phoenix House appealed against the employment tribunal's approach to the covert recording, arguing that it would have been entitled to dismiss Ms Stockman for gross misconduct if it had known about the recording and her compensation should be reduced to zero.

Phoenix House argued that Ms Stockman's motive for the recording had been to entrap their HR administrator. Therefore, there had been a breakdown in trust and confidence. The EAT did not agree.

The EAT noted that, whilst entrapment was a possible motive for the recording, there were a number of others, including

  • a desire by the employee to keep a record
  • to enable the employee to take advice from their union or a solicitor at a later date
  • to protect the employee from being misrepresented in any way.

The EAT's view was that these motives empowered employees to hold employers accountable and could provide further protection to them in meetings which were often stressful or emotionally charged.

So, when considering whether an employee's covert recording is legitimate, the employee's motivation in doing so should be taken into account. The EAT also cited the following reasons which would be considered in any decision to reduce an award for covert recording.

  • The extent of the employer's blameworthiness.
  • The subject matter being recorded (recording a meeting concerning their own performance implies a very different motivation to recording a business sensitive or confidential meeting).
  • Prior evidence of the employer's attitude to such conduct (though this was not explored extensively it can be presumed that it may include anecdotal evidence from previous internal company grievances as well as the company's written policy on the issue).

In this particular case, the EAT took into account the fact that

  • Ms Stockman was described as 'flustered' during the recorded meeting
  • she did not ask any leading questions which would imply an attempt to entrap the employer; and
  • she made a transcript of the recording in order to comply with Phoenix House's policy.

Applying the above factors to this case, the EAT found that Ms Stockman's motivation was not one of malice; but rather a desire to keep a record of what was happening during a time of high stress.

The impact of changing technology

Interestingly, the EAT also noted the ease with which conversations can now be recorded and the impact that has on judicial approach. Until recently, it would have taken quite considerable effort to record a meeting, by either the employer or employee. With advances in technology, specifically the increasing capabilities of mobile phones, it is now very easy. People regularly record on their phones as an aid to their day to day lives; the EAT considered that this ease meant a recording should no longer be automatically considered malicious.

What does this mean in practice?

In light of the factors identified by the EAT in this decision, you may wish to consider taking the following steps.

  • Review and update your disciplinary / grievance policies and / or procedures, and specifically include covert recording as an example of gross misconduct which may result in summary dismissal. You may wish to make it a matter of policy to ask attendees at sensitive meetings to confirm that they are not making a recording.
  • If you decide to allow recording of disciplinary or grievances meetings under your policies and / or procedures, you may wish to agree at the outset of meeting whether you are content to allow that meeting to be recorded, adopting a 'case by case' approach. You should ensure that the decision on recording is noted in writing and that all those present at the meeting consent. You may wish to reserve the right to review and agree to any transcript of the meeting, and underline in your policy that employee recordings of meetings are allowed only at your discretion.
  • Remember that even if a covert recording is made in breach of your policy, it is possible that it will still be admissible in any subsequent employment tribunal proceedings.

In this case, Phoenix House had not changed their policy in relation to covert recording in the time between the initial 2013 incident and the 2019 appeal hearing. This was noted by the EAT. It is evident, therefore, that putting your position clearly into writing is important. Doing so may not necessarily sway an employment tribunal's opinion in your favour, but if your defence is consistent with your policy there is an increased likelihood that your defence may succeed; and, if it does not, that the claimant's compensation may be reduced.