Is it misconduct for an employee to make secret recordings of meetings with their employer?

Mobile phones make it easy for employees to secretly record meetings they attend with management or HR, or even conversations with colleagues.

The general position of tribunals has been that the evidence contained within a recording is usually admissible, regardless of whether or not the recording was made without the employer’s consent (which is a breach of privacy and data protection legislation).

In the recent case of Phoenix House Ltd v Stockman, the Employment Appeal Tribunal (EAT), rather than considering whether a covert recording was admissible as evidence, it was asked to consider whether making secret recordings would amount to misconduct.

When a tribunal makes a finding of unfair dismissal, the compensation awarded to an employee can be reduced as a result of other factors which would (or 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.

In this case, the EAT considered how to apply that reduction where the employee had made a secret recording which was only discovered after they had been dismissed. In doing so, the tribunal provided helpful principles for anyone dealing with secret recordings.

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

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 relating to her dismissal.

The tribunal found that the dismissal was unfair, and this was upheld by the EAT on appeal. However, they reduced the award of compensation by 10% on the basis that Phoenix would have had a 10% chance of fairly dismissing Ms Stockman for her conduct in recording the meeting, had they known about it at the time.

The appeal

Phoenix appealed the decision; they believed that the reduction in compensation should have been far greater. The EAT 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 covertly. However, this would not always be the case and there was no reason to interfere with the tribunal’s 10% reduction. The EAT set out a number of helpful factors to consider when deciding whether or not it is misconduct to make a recording.

The EAT said that employers should consider:

1. 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.”
2. 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?
3. What is recorded? – this could vary from a meeting where detailed notes have been taken, to a meeting covering very confidential business matters or personal information relating to third parties.
4. The attitude of the employer to recordings – has the employer set out in its policies/procedures or contracts that meetings must not be recorded?

Impact on schools

Not all schools will be concerned about employees recording meetings, but many will feel it inhibits conversation, and runs the risk of a misunderstanding where gestures or facial expressions convey some of the meaning of what is being said. Schools should therefore adopt a general approach to employees making a recording.

Top tips

Prohibiting recordings by employees

• If schools do not want meetings to be recorded, they should have a policy that makes this clear.

• Include this as an example of misconduct or gross misconduct in any disciplinary procedure and prohibit recordings of disciplinary and grievance meetings in those policies.

• In very sensitive meetings, verbally remind employees of the school’s policy on recordings.

• Ask for mobile phones to be switched off, and ask whether the phone is being used to record the meeting. Lying about making a recording will make it more likely to constitute misconduct.

• If there are to be deliberations after the meeting without the employee present, ensure that all of the employee’s personal belongings have been removed from the room, or that staff move to a different location.

• Schools should be mindful that, in some circumstances, it may be a reasonable adjustment to allow a recording (for example, if an employee has a disability).

Allowing a recording

• If recordings are to be used, schools should apply a consistent approach to the recording of meetings to avoid any suggestion of less favourable treatment.

• It is best to agree to a recording in advance, with the school providing a transcript of the discussion. 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.

As an aside, schools should be mindful that if they covertly record a meeting with an employee, this will almost always amount to a breach of trust and confidence and give rise to a constructive dismissal claim. For more advice on this subject, please contact Hannah Wilding on 01242 246 485 or at [email protected].