Fallouts between managers and employees often arise from one-to-one meetings, such as performance reviews or conduct-related meetings. When disputes escalate to grievance or tribunal proceedings, a recurring problem is the different versions of events recounted by both parties. When no other witnesses are present outside of the disputing manager(s) and employee(s) it becomes one person’s word against another, with no evidence as to who is correct about what happened in the meeting room. Because of the breakdown of trust in the working relationship, employees often do not feel confident relying on employers to take accurate notes.

Increasingly, employees have resorted to secretly audio recording meetings on their mobile phones to protect their position and evidence allegations. This has led to a heightened discussion about when secretly recording meetings in the workplace is appropriate, and when is it so inappropriate as to constitute gross misconduct. Gross misconduct is when an employee’s misconduct results in a fundamental breach of their contract of employment, meaning the employer can dismiss them without notice.

Earlier this year the Employment Appeals Tribunal handed down their judgment on the case of Phoenix House v Stockman. The judgment contained some important commentary on employees taking covert recordings of meetings with managers.

Facts

The employee brought claims against their employer for unfair dismissal, discrimination, victimisation and public interest disclosure detriment (whistleblowing). During the course of the proceedings, the employee disclosed an audio recording she had taken secretly of a meeting she had with the Director of Resources.

The employer argued that they would have dismissed the employee in any event, because covertly recording meetings amounts to gross misconduct. On this basis, they argued that any compensation awarded to the employee should be reduced to nil.

Employment Tribunal Judgment

The Employment Tribunal concluded that there was a low chance the employer would have fairly dismissed the employee had it known of the covert recording. The Employment Tribunal therefore reduced the compensation awarded to the employee by 10% to reflect this.

The Employment Tribunal considered the following factors when deciding that the covert recording did not likely amount to gross misconduct:

• The employee did not record for the purpose of entrapment, the Claimant asked no questions which gave the impression of being made in order to obtain a favourable answer;
• The employee was ‘flustered’ at the time and unsure if the device would even record;
• The employee did not make use of the recording during the internal disciplinary or grievance proceedings;
• The employee disclosed the transcript in the Tribunal proceedings in line with her duty to disclose, even though the recording was detrimental to her case in some ways; and
• Covert recording was not set out specifically in the employer’s disciplinary policy as amounting to gross misconduct.

Employment Appeal Tribunal Judgment

The employer appealed, arguing that the Employment Tribunal was bound to hold that any covert recording of confidential conversations is gross misconduct unless there is a pressing justification. The employer claimed that this is because covert recordings are by nature dishonest, made to obtain an advantage for the employee and place the employer at a disadvantage. They argued that recordings are usually intended to secure the benefit of the person being recorded making an ‘unguarded remark’. Therefore, it was impossible to reach any other conclusion than that the employee covertly recorded the meeting with the intention of entrapment.

The Employment Appeal Tribunal disagreed with the employer and dismissed the appeal, saying the Employment Tribunal was not incorrect in its judgment. The Employment Appeal Tribunal provided reasoning that it is easy for an employee to record meetings, as most people have mobile phones which can record audio. Therefore, it is not necessarily the case that recordings are made to entrap, as may have been presumed in the past when more significant effort would have been made to record a meeting secretly. The Employment Appeal Tribunal mentioned that employees often covertly record meetings to protect themselves from misrepresentation, keep a record or seek advice from unions or elsewhere.

The Employment Appeal Tribunal stated that the Employment Tribunal can make an assessment on the facts of the case as to whether a covert recording amounts to gross misconduct. The purpose of the recording will be relevant to this assessment, for example whether the employee sought to entrap the employer or was trying to guard against misrepresentation. Further, whether there were pressing circumstances to justify a covert recording. What is recorded may also be relevant, whether it was a meeting concerning the employee which would normally be recorded anyway or a highly confidential meeting relating to the business information of the employer or personal information of other employees.

Comment

The judgments by both tribunals indicate that covert recordings do not automatically constitute gross misconduct justifying dismissal.

Nevertheless, employees should be cautious about recording meetings without consent or notice. Employees should consider why they want to make a recording, is it to protect themselves from misrepresentation or to deceive and get the better of managers or other staff members? Further, how necessary is the recording? How useful will any recording be as evidence in future proceedings? Lastly, employees should be especially cautious about recording meetings of a sensitive and confidential nature, including meetings in which confidential business information is exchanged.

Employers should consider putting specific wording into their disciplinary policies, stating that covert recordings always amount to gross misconduct by employees. Further, having meetings recorded by open and impartial means where possible may restore trust in the manager and employee relationship, therefore deterring an employee from recording meetings secretly themselves.

Our Professional Discipline and Regulatory Solicitor Sheetul Sowdagur also comments on potential regulatory issues to consider regarding covert recordings:

Covert recordings as a topic needs to be considered by both professional regulators and regulated individuals. Given the requirement of good character by regulators, covert recordings of meetings and their use could raise questions about the character of a professional. The requirements of not bringing the profession into disrepute and upholding public confidence in the profession also need to be considered in this context.  As covert recordings become more commonplace, perhaps it is now time for regulators to issue guidance on this matter which balances the interest of professionals with the reputation of the professions.