In the recent case of Phoenix House Ltd v Stockman, Mrs Stockman was dismissed following a grievance she had raised during a restructuring process and while talking with a HR representative, secretly recorded the meeting. This fact was only disclosed during her successful unfair dismissal claim.
Phoenix House appealed against the award of compensation, arguing that it should have been reduced to reflect Mrs Stockman’s pre-dismissal conduct and had they known about the covert recording they would have dismissed her anyway for misconduct.
Although the appeal was dismissed by the Employment Appeal Tribunal (EAT), the interest in this decision lies not in the outcome, as such, but rather in what the EAT had to say about covert recording.
Phoenix House argued that Mrs Stockman’s conduct in making the covert recording meant she had breached the implied term of trust and confidence, i.e. conduct which so undermines trust and confidence that the employer (or employee as this is a two-way street) should no longer be required to keep the employee in employment (or the employee should no longer consider himself bound by his contract of employment).
The EAT recognised the ease with which meetings can now be covertly recorded and that, in its collective experience, it is not uncommon to find an employee has recorded a meeting without saying so. Such recordings are not necessarily undertaken to entrap or gain a dishonest advantage, but a recording may have been done to keep a record or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation, or to enable the employee to obtain advice from a union or elsewhere.
A tribunal is not bound to find that such a covert recording necessarily undermines trust and confidence – it depends very much on the fact situation. However, the EAT did state that it ‘considered it good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances – and it will generally amount to misconduct not to do so’.
Employers should recognise that the advent of new technology means that employees have ready access to record not only meetings, but also discussions. The possibility that a meeting or discussion is being recorded by an employee, which will later be admissible as evidence in an Employment Tribunal, would be a prudent consideration for all employers.
For further information, please contact our Employment Law team today on 02920 853794 or email employment@thomas-carroll.co.uk.
