In this OnPoint, we report on a recent decision of the UK Employment Appeal Tribunal on the issue of the covert recording by employees of meetings with their employer, and the legal and practical issues this highlights in relation to the recording of meetings with employees.

Introduction

The increased ease with which employees can surreptitiously record meetings with their employer through the use of modern technology – whether by using the recording function on their mobile phones or otherwise – has led to increased concerns about how employers should address this issue as a matter of policy and in practice. The recent Employment Appeal Tribunal (EAT) decision in Phoenix House Limited v Stockman considered whether it was a breach of contract justifying dismissal for an employee to make a covert recording of a meeting with HR. The EAT’s judgment also gives some guidance on how an employer might approach a situation where it discovers that an employee has made a covert recording at work. This is an issue which employers need to consider in the wider context of their approach to the recording of meetings with employees generally.

Phoenix House Limited v Stockman

Ms Stockman was employed by Phoenix House, a charity which provides support to people with drug and alcohol problems, at various times as a financial accountant and as a payroll officer. During a restructuring process, she made a complaint about a colleague who she felt was treating her differently, and a complaint that the restructuring process was biased against her. A witness agreed that sometimes this colleague did not speak to Ms Stockman. Her manager held a meeting with the colleague about whom she had complained and the witness. Ms Stockman saw the meeting taking place, entered the room and demanded forcefully to know what was being discussed. Her manager told Ms Stockman that the meeting was private and asked her to leave. She refused to do so and her manager had to repeat the request twice more before she left, in a distressed state.

Later that afternoon, a member of the HR department met with Ms Stockman, who covertly recorded that meeting. The employer was unaware of the recording until Ms Stockman disclosed a transcript of it as part of her disclosure of relevant documents in her subsequent employment tribunal (ET) claim.

At the meeting Ms Stockman was told that she would face disciplinary action for interrupting a meeting and failing to leave as requested. She said that she would lodge a grievance. Following subsequent disciplinary proceedings, a grievance, a number of appeals and a mediation meeting, Ms Stockman was dismissed. The ET rejected claims for whistleblowing and discrimination but found that Ms Stockman’s dismissal was unfair. Nonetheless, the ET considered that it was possible that, had the employer known about the covert recording, it might have considered the making of the recording to be a misconduct matter which could have led to a fair dismissal. However, the ET considered that in the circumstances there was a low percentage chance of this and reduced the unfair dismissal compensation awarded to Ms Stockman by (only) 10%. Both the employer and the employee appealed against the findings of the ET that went against them.

The EAT’s analysis and guidance

At the appeal stage the EAT considered whether the covert recording amounted to a breach by Ms Stockman of the implied term of trust and confidence between employer and employee, meaning that, had the employer known about the recording, it could have dismissed her for gross misconduct without notice or compensation. The EAT also reviewed the extent to which the compensation for unfair dismissal awarded to Ms Stockman should be reduced because she had made the covert recording.

The EAT noted that, before mobile phones, employees would have had to go to a great deal of trouble to record a meeting covertly, and it would have been relatively easy to conclude that the employee’s motive for doing so was entrapment, or to gain an unfair advantage. It was acknowledged, however, that most people now carry a mobile phone at all times, and making a recording of a conversation is easy. An employee may make such a recording for a variety of reasons; consequently in the EAT’s view an ET should examine what those reasons were in order to assess whether in a particular case the implied term of trust and confidence has been breached, whether the employer would be justified in terminating the employee’s employment, and whether there should be a corresponding reduction in the amount of any compensation awarded to reflect the employee’s culpable conduct. In making that assessment, the EAT found that the following issues could be relevant depending on the circumstances:

• The reasons for making the recording: a covert recording may be made by a highly manipulative employee seeking to entrap the employer or, at the other extreme, by a confused and vulnerable employee seeking to keep a record or guard against misrepresentation. The reality is likely to fall somewhere between the two, and the ET should make an assessment of the circumstances of each particular case.

• The extent to which an employee is to blame in relation to the making of the covert recording: the situation may vary from an employee who has been specifically told that a recording must not be made, or has lied about making a recording, to an inexperienced or distressed employee who has not thought through the reasons for making the recording, or whether it is the right thing to do.

• The subject matter of the recording: it may be more acceptable for an employee to record a meeting concerning their own employment, of which a record would normally be kept and shared, as opposed to recording a meeting discussing confidential business or personal information relating to the employer or another employee. Such a recording may involve a serious breach of the rights of the employer or other employee, and is unlikely ever to be acceptable.

• The attitude of the employer to covert recordings: the EAT noted that it is still relatively rare for covert recording to appear on a list of examples of gross misconduct in a disciplinary procedure.

The EAT took the view that it is good employment practice for an employee or employer to make clear if there is any intention to record a meeting, save in the most pressing of circumstances, and that it will generally amount to misconduct for an employee not to do so. This allows both sides to consider whether it is desirable to record the meeting, and if so how. The EAT acknowledged that it is not always desirable for a meeting to be recorded. Sometimes, recording might inhibit a frank exchange of views. It may be better to agree the outcome at the end of a meeting. If a meeting is long, a summary or note may be of more value than a recording, which may have to be transcribed. In summary, the EAT concluded that the ET was not bound to assume automatically in every case that a covert recording was a breach of trust and confidence. Instead, the ET should make an assessment of the employee’s actions in the specific circumstances of the case.

In this case, the ET found that Ms Stockman had not recorded the meeting with the intention of entrapment. During the meeting she gave no indication that she was raising specific questions in order to obtain a favourable answer. Rather, she was flustered, and even uncertain as to whether the device would record. She had recorded a single meeting concerned with her own position. It did not concern the confidential information of the business or other individuals. She did not make any use of the recordings as part of the internal proceedings with the employer. She only created a transcript of the recording because of her legal obligations under the ET’s disclosure process, and in one respect the transcript was detrimental to her case. The employer’s disciplinary policy did not specifically provide that the making of a covert recording would amount to gross misconduct, and even after the incident, the employer did not amend its policy.

Taking into account all those factors, the EAT considered that the ET had correctly assessed that Ms Stockman’s actions were not serious enough to have breached trust and confidence between her and her employer. The ET had been entitled to find that her dismissal was unfair and it had made a suitable reduction in the compensation awarded to Ms Stockman based on its assessment of the situation. The EAT therefore rejected both the employer’s and the employee’s appeals.

Admissibility of covertly obtained evidence in Employment Tribunal proceedings

Whilst employers may seek to argue that to have made a covert recording justifies dismissal or an argument that the compensation to be awarded to an employee on a successful employment claim should be reduced, they may also be concerned about the substance of what has been recorded, particularly in circumstances where private deliberations in the absence of the employee have been recorded which cast their actions and decision-making process in a bad light. The question can then arise as to whether such covert recordings of meetings can be used as evidence in ET proceedings, perhaps to demonstrate bias or unfairness in the employer’s dismissal process. The ET’s rules on evidence give the ET a wide discretion to decide what is admissible. In practice, the ET will generally admit evidence which is relevant to an issue between the parties. Such evidence is only likely to be excluded if it is introduced late in the proceedings, would be in breach of the Human Rights Act or should be excluded as a matter of public policy.

However, the specific circumstances of the case will need to be taken into account by the ET. By way of contrasting examples, in Chairman and Governors of Amwell View School v Dogherty, a recording of the parts of a disciplinary hearing at which the employee was present was found to be admissible in evidence, but not the recording of the private deliberations of the panel, the basis for this decision being public policy. The EAT did, however, note that the recording of those private deliberations might have been admissible if the issue had been one of discrimination and the recording had provided evidence of discrimination. Private comments made during disciplinary proceedings when the employee was not present were nonetheless found to be admissible in Punjab National Bank (International) Ltd and others v Gosain where those comments were not part of the panel’s deliberations. In contrast, in Williamson v Chief Constable of the Greater Manchester Police and another, a covert recording was not admissible where the employee had ample other evidence to support the claim which had been brought. Covert recordings were not admissible in Vaughan v London Borough of Lewisham and Others where the claimant had some 39 hours of recordings of discussions with colleagues which had not previously been disclosed, and for which the claimant could not provide either a transcript or a precise explanation of why the recordings were relevant.

The ET will also not admit covert recording of discussions which amount to legal advice and which are protected by legal professional privilege (demonstrated by the decision in Fleming v East of England Ambulance Service NHS Trust).

How should employers respond?

Whether recording formal meetings, such as disciplinary and grievance meetings, should be an employer’s standard approach as a matter of course is a policy decision employers may wish to review, as there are arguments both ways. A recording reduces the scope for subsequent argument about what was or was not said at the meeting, and avoids the risk of time consuming and unhelpful disputes with the employee about the accuracy of the notes made by the employer of the discussions. Nevertheless, the participants in a meeting may find it distracting to be recorded, and it may impede discussion. There may be situations where the personal circumstances of the employee may make it appropriate for a meeting to be recorded - for example where this constitutes a reasonable adjustment in respect of an individual’s disability for the purposes of the Equality Act 2010.

Issues for employers to bear in mind in the context of recording of meetings therefore include:

• reviewing whether the employer’s policy should be to have a blanket ban on recording of meetings, to allow recording by agreement where appropriate, or to allow for recording either as standard practice or where requested by the participants. It may well be appropriate to update disciplinary and grievance policies to reflect specifically the employer’s approach to this issue;

• considering whether to make it explicit in appropriate policies that any covert recording of conversations or meetings by the employee in the work environment is forbidden, and may be treated as gross misconduct;

• where the employer is not recording the meeting, making this clear at the start of a meeting and the expectation that no participant in the meeting is making a recording, in order to clarify the position to the employee and discourage covert recording; and

• if recording is not generally permitted but an employee requests it, ensuring that there is a sensible discussion as to the appropriateness and method of recording, and whether an alternative method of memorialising the meeting (e.g. by a written note, or written summary of the outcome of a discussion) might be more appropriate.