Does secretly recording meetings amount to gross misconduct?
Increasingly, employers are faced with employees who covertly record meetings. In Phoenix House v Stockman, the Employment Appeal Tribunal (EAT) considered whether an employee’s conduct… Read more
Increasingly, employers are faced with employees who covertly record meetings. In Phoenix House v Stockman, the Employment Appeal Tribunal (EAT) considered whether an employee’s conduct by covertly recording a meeting could amount to gross misconduct.
At the Employment Tribunal (ET) stage, a transcript was disclosed by the employee (Ms Stockman) of a meeting with HR that she had secretly recorded. The ET found the employee’s dismissal to be unfair, and awarded her compensation. The employer appealed to the EAT, arguing that Ms Stockman was not entitled to any compensation because it would have dismissed her for gross misconduct in any event if it had known that she had secretly recorded the meeting. If the EAT accepted this argument, it would have been able to reduce the compensation awarded to Ms Stockton by up to 100%.
However, the EAT rejected the employer’s argument. In doing so, it provided some helpful guidance for employers about the factors to be taken into account:
- The purpose of the recording: The EAT observed that recording meetings used to involve more effort by employees and it was therefore previously more straightforward to conclude that the employee’s intention was to entrap the employer, or to gain an unfair advantage (which might undermine trust and confidence). However, nowadays most people carry a device on them that can easily make a recording and employees might do so for many other reasons, such as for a personal record, to protect themselves from misrepresentation or to seek subsequent legal advice.
- The content of the recording: Would a note normally have been kept of the material recorded, or was it highly confidential information, or personal information concerning other employees?
- The blameworthiness of the employee: Has the employee been told that they should not record the meeting? Have they lied about recording the meeting? Are they so distressed that they are unlikely to have considered whether they are allowed to record the meeting?
- The attitude of the employer: Is there evidence to suggest that the employer would consider recording a meeting to amount to misconduct? For example, is it listed as such in the employer’s disciplinary policy? Have they notified the employee at the beginning of the meeting that no recording should take place?
The EAT was satisfied that Ms Stockman had not intended to entrap her employer. She had not used the recording and only created a transcript as part of her disclosure obligations. Further, she had been flustered at the time, unsure of whether the device would record and had not asked any leading questions suggesting that she was trying to manipulate her employer.
Following this decision, it would be sensible for employers to update their disciplinary policies and to tell employees at the beginning of meetings that no recordings should be taken.
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