Will covertly recording a meeting always be gross misconduct?

Chartered Legal Executive John McArdle draws some useful guidance from the recent decision of the EAT in Phoenix House Ltd v Stockman.

We have seen a sharp increase in the number of queries regarding covert recording of meetings over recent years. The majority of us have smart phones or watches with apps which mean watching hours of ‘The Wire’ is no longer necessary to understand how to covertly record a meeting.

The Employment Appeal Tribunal has recently issued a judgment which contains some useful guidance for employers on the seriousness of an employee covertly recording internal meetings.

In the case of Phoenix House Ltd v Stockman the EAT confirmed that the covert recording of a meeting by an employee will usually amount to misconduct, except in the most extreme circumstances. However, whether it constitutes gross misconduct is less certain and is likely to depend on whether the employee had been informed of the seriousness of doing so beforehand.

The employer argued, in an attempt to further reduce the compensation awarded to the Claimant for an unfair dismissal, that the fact that she had covertly recorded a meeting during her employment constituted gross misconduct. It was argued that the Claimant would have been dismissed in any event (due to having made the covert recording which only became apparent during the Employment Tribunal hearing) and/or that the 90% compensation awarded was not just and equitable in view of her misconduct.

However, the EAT disagreed and declined to increase the 10% reduction to the compensation on the basis that the Employment Tribunal had correctly applied the law. It was of crucial importance to the EAT that the Claimant had been found to have made the recording not because she had wanted to entrap a manager, but because she had felt flustered and vulnerable in the situation.

In reaching this finding the EAT made some interesting observations about when covert recordings might amount to misconduct, gross misconduct, or neither.

First and foremost the EAT remarked that it is good employment practice for an employee or employer to say if there is any intention to record a meeting. If a meeting is recorded covertly it is generally considered misconduct but there are some exceptions.

For example, if an employee claims to have covertly recorded a meeting which was due to be recorded fully in writing anyway this is unlikely to be considered misconduct; particularly if there was no malicious intention and if they were not warned about doing so prior to making the recording.

On the other hand, the conduct of an employee who records a meeting dealing with highly sensitive or confidential information relating to other individuals may duly be considered much more serious. This is particularly the case were there is a suggestion of entrapment.

On the question of whether covert recording constitutes gross misconduct, there will normally need to have been some prior warning to the employee regarding the seriousness of covert recording of meetings. If an employer considers this issue to be of particular seriousness (for example, if highly confidential and sensitive information is regularly discussed) it is advisable for this to be included in a list of examples of what might constitute gross misconduct in a conduct policy.

These cases tend to turn on their facts, so please do get in touch if you are currently dealing with a similar situation. In broad terms though, it is important to be alive to the fact that it is increasingly common for employees to record meetings. Employees should be warned if this is not permitted and reminded, where appropriate, that covert recording may be a serious disciplinary offence.

John McArdle is a Chartered Legal Executive in the Employment Pensions and Immigration team and is based in Liverpool. If you have any questions please do not hesitate to contact John on 0151 242 7932 or john.mcardle@weightmans.com or speak to your usual Weightmans advisor.

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