Anyone who has worked in HR for long enough will have come across a situation where an employee has, without telling their employer, recorded a conversation with a line manager or even recorded a more formal meeting like a disciplinary hearing.  Some employers, for that reason, require employees to handover all recording devices at the beginning of meetings, remind them that the meeting is not to be recorded, and I certainly advise line managers to assume that they have been recorded, or are going to be, so that they  conduct themselves accordingly when liaising with their staff.  This is because of the cases where employees have been able to use comments obtained in a recording with the employer.  We have even had cases settle purely on the basis of the fact that there was a recording where the employer has not wanted the content of that recording to become an item of disclosure in the Tribunal!

Recently, there has been an Employment Appeal Tribunal case of Phoenix House v Stockman,which involved an employee successfully claiming dismissal.  During that process she disclosed a covert recording that she had made during her employment, and her employer argued that the compensation for her dismissal should be reduced.  It argued that there was no pressing justification for her making the recording, but doing so was an act of misconduct.  So, it is in this context of arguing how much money the employee should have received that the Employment Appeal Tribunal made observations about covert recordings. 

They found that the individual didn’t make the recording for the purpose of entrapment, and that they didn’t ask any questions which gave the impression of the recording being made in order to obtain a particular answer. Rather, they found that she was flustered at the time and uncertain even if the device would record.  She didn’t use the recordings as part of the internal process with the employer, but created a transcript because of her legal obligations under the Employment Tribunal disclosure process.  In one respect, the transcript was actually detrimental to her arguments.

They also noted that the making of a covert recording was not set out specifically in the Respondent’s disciplinary policy as something that would amount to gross misconduct. You might like to consider whether, if you want to ever rely on a recording being misconduct, you include that in your disciplinary procedures?

The EAT went on to discuss that there was a time when recording a meeting involved going to a great deal of trouble.  At times it was straightforward to draw the conclusion that the recording had been undertaken to entrap or gain an unfair advantage.  However, they noted that times have changed with most people carrying a mobile telephone which is capable of making a recording and it is the work of a moment to switch it on.  They felt it was not uncommon to find an employee recording meetings without saying so, but doing so isn’t necessarily trying to gain a dishonest advantage, more often it is done to keep a record or protect the employee from the risk of being misinterpreted when later faced with an accusation or an investigation or to enable the employee to obtain advice from a union or elsewhere. For that reason, they did not think that a Tribunal was bound to conclude that the covert recording undermined trust and confidence between the employee and employer, rather the Tribunal was entitled to make an assessment of all the circumstances.  

They noted that the purpose of a recording will be relevant: this varies from a highly manipulative employee seeking to entrap an employer, to a confused and vulnerable employee seeking to keep a record or guard against misrepresentation.  The employee’s blameworthiness would also be relevant, from an employee who had specifically been told a recording should not be kept, or who has lied about making a recording, to the inexperienced or distressed person who has scarcely thought about potential blameworthiness in making the recording.  They noted that what is recorded is also relevant, varying between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting that was highly confidential.  In this case, the recording involved a serious breach of the rights of others.  Evidence of the attitude of the employer to such conduct would also be relevant.

They went onto say that it would be good employment practice for an employee or an employer to say if there was an intention to record a meeting, save in the most pressing of circumstances, and that it would amount to misconduct not to do this.  This practice allows both sides to consider whether it is desirable to record a meeting.

They noted that sometimes it is not desirable to record a meeting where you need to have a frank exchange of views, for example, between trade union representatives and management, it would inhibit that exchange if the meeting was recorded.  It is better to agree the outcome at the end when everyone has had their debate.  They also noted that if meetings are long, a summary or note will be of far more value than a recording which would end up having to be transcribed.

It is therefore interesting to see that there may be circumstances in which we cantake disciplinary action against an employee who makes a covert recording without seeking the employer’s permission/telling them/being open about it. If we want to do this, then we need to include it in our disciplinary procedures or elsewhere in other policies, such as computer and device policies, and draw to people’s attention that they should, if they want to record a meeting, say so.