It is now quite common for employees to secretly record disciplinary and grievance meetings and other workplace interactions. As a rule of thumb, the employment tribunal will usually listen to any relevant recordings (but will usually refuse to listen to any deliberations, unless they include some impropriety or discrimination).

The EAT recently considered if an employee’s compensation should be reduced because she had secretly recorded a meeting with HR. The employee, S, complained that she had been treated unfairly by her line manager in a restructure which deleted her post. S interrupted and refused to leave an investigation meeting, which she had not been invited to. Later that day, a meeting took place between S and HR, which S secretly recorded, during which S was informed that she would be disciplined for her unwanted intervention in the earlier meeting.

A disciplinary process followed, which held that S was guilty of misconduct. After mediation failed, S was dismissed on the basis that the employment relationship had irretrievably broken down. The employment tribunal upheld S’s unfair dismissal, whistleblowing detriment and victimisation claims. The tribunal reduced S’s compensatory award by 10% to reflect her conduct in covertly recording the meeting.

The employer appealed, arguing that S’s compensation ought to be reduced to nil because, had it known about the covert recording, it would have dismissed S for gross misconduct. The EAT rejected the employer’s appeal and held that it cannot be said that an employee covertly recording a meeting necessarily undermines the relationship of mutual trust and confidence.

The purpose the employee has in mind when making the recording is relevant. The employee might have a variety of reasons to covertly record a meeting, such as to keep a record of what has been said or to enable them to obtain legal advice. It is good practice to communicate an intention to record a meeting, and it will generally be misconduct not to do so. Employers can also expressly list the covert recordings of meetings as an act of misconduct in their disciplinary policies. The tribunal had been entitled to find that S had not recorded the meeting to entrap the employer, but because she was flustered. The EAT refused to increase the 10% reduction in S’s compensation.