Can your employees covertly record meetings?

Phoenix House Ltd v Stockman UKEAT/0284/17 (No.2)

Take away

Smart devices and mobile phones make it incredibly easy for employees to secretly record meetings they attend with HR or management, or even conversations with colleagues.

The recent case of Phoenix House Ltd v Stockman UKEAT/0284/17 (No.2) highlights the fact that such conduct will often be misconduct. However, this is not always the case. You must still consider all the circumstances, particularly the reason for the recording and the employer’s rules on doing so.

The case also reminds employers that, if secret recordings are a particularly sensitive issue for them, they should include this in their policies as an example of gross misconduct and remind employees that they are not permitted to record meetings without permission.

Unfair dismissal and recordings

When a Tribunal makes a finding of unfair dismissal, compensation can be reduced if other factors could have led to the employee’s dismissal in any event. The Tribunal decides what is ‘just and equitable’ and makes a percentage reduction to the award. This case considered how to apply that reduction where the employee had made a secret recording only discovered after the dismissal. In doing so, it provided helpful principles for anyone dealing with secret recordings.

Restructuring ended in dismissal

Ms Stockman worked in the finance department of Phoenix House, a charity providing support to people with drug and alcohol problems. A restructuring resulted in Ms Stockman taking a more junior role and various complaints by Ms Stockman about her treatment. Ms Stockman secretly recorded a meeting with HR during this process.

Ms Stockman was eventually dismissed on the basis that the relationship with her employer had broken down.  Phoenix did not find out about the recordings until Ms Stockman brought a Tribunal claim over her dismissal.

The Tribunal found that the dismissal was unfair, and this was upheld on appeal. However, they also reduced the compensation by 10%, saying that Phoenix would have had a 10% chance of dismissing Ms Stockman fairly for her behaviour in recording the meeting.

The appeal

Phoenix appealed the decision, saying that the reduction should have been far greater. The Appeal Tribunal dismissed the appeal. They said that it was good practice for either party to say if they intended to record a meeting and it would usually be misconduct to do so secretly. However, this would not always be the case and there was no reason to interfere with the initial 10% reduction. The Appeal Tribunal set out helpful factors to consider when deciding whether making a recording is misconduct.

The Appeal Tribunal said that you should consider:

• The purpose of the recording – this can range from “the highly manipulative employee seeking to trap the employer, to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation.”
• The blameworthiness of the employee – has the employee been specifically told not to make a recording, lied, or simply been so distressed that they did not think about whether it was appropriate behaviour?
• What is recorded? This could vary from a meeting which has detailed notes taken anyway, to a meeting covering very confidential business matters or personal information relating to third parties.
• The attitude of the employer to recordings – has the employer set out in handbook policies or contracts that meetings must not be recorded?

Top tips for employers

• Not all employers take issue with employees recording meetings, but many feel it inhibits conversation, and runs the risk of misunderstandings where gestures or facial expressions convey some of the meaning of what is being said. Decide how you feel about a request to make a recording.
• If you do not want meetings to be recorded, have a policy that makes this clear. Include this as an example of misconduct or gross misconduct in your employee handbook and prohibit recordings of disciplinary and grievance meetings in those policies.
• In very sensitive meetings, employers may want to verbally remind employees of the no-recording policy.
• Ask for mobile phones placed prominently on a table to be removed, and ask whether the phone is being used to record the meeting. Lying about making a recording is more likely to be misconduct than simply doing so without mentioning it.
• If there are to be private deliberations after the meeting, ensure that all the employee’s personal belongings are removed, or move to a different room yourselves.
• If recordings are to be used, it is better that this is agreed in advance, with the employer agreeing to provide a transcript. This can be helpful in some situations, particularly if an employee is likely to find a disciplinary meeting confusing or overwhelming for reasons linked with a disability, but has declined a companion.
• Secret recordings by an employer will almost always be a breach of trust and confidence and give rise to a constructive dismissal claim. The employer will never have the mitigating factors like vulnerability or inability to keep a record that might apply to an employee.