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Covert recordings and misconduct

The Employment Appeal Tribunal has recently clarified the law regarding the making of covert recordings during meetings between employees and employers in the case of Stockman v Pheonix House . Generally, if an employee makes a covert recording it will be considered an act of misconduct, except in the most pressing of circumstances.

In the case before the EAT, a Tribunal found that Ms Stockman had been unfairly dismissed. During the Tribunal hearing, it came to light that Ms Stockman had convertly recorded a number of meetings between her and her employer. Pheonix House argued that they would have dismissed Ms Stockman for gross misconduct had they been aware of the covert recordings and so this would reduce her compensation to nil. The Tribunal reviewed the employer's handbook and found that it did not refer to covert recordings as an act amount to misconduct.

When considering cases such as this, the EAT said: “The purpose of the recording will be relevant; and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation.” An employee’s blameworthiness should also be considered in determining gross misconduct: for instance if they lied about making a recording, were specifically told a recording must not be kept or whether the meeting included highly confidential business or personal information.

The EAT said it was good practice to tell attendees that a meeting will be recorded. Employers should ensure that their employee handbooks reflect whether covert recordings are to be permitted and if not, whether it will amount to an act of misconduct or gross misconduct.

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