Can employees covertly record meetings within the workplace?
Technology is forever evolving at significant speed making it much easier for individuals to secretly record conversations and meetings within the workplace. Many employers see this underhanded tactic as a breach of trust and confidence which should result in dismissal, but what are the true ramifications for an employee who does this? The case of Phoenix House Ltd v Stockham  IRLR 960 (Phoenix v Stockham) recently sought to address this issue.
Phoenix v Stockham involved the claimant being successful in her claim for unfair dismissal. During the dismissal process the Claimant covertly recorded a HR meeting. The Respondent argued that her award should be reduced to nil as if they had known about said recording they would have dismissed her for gross misconduct. Therefore, it was not just and equitable to make any award. The Tribunal reduced the award by 10% in relation to the Claimant’s conduct in covertly recording the meeting. The Tribunal, when reaching their decision, highlighted the following factors that should be considered when being referred to the use of covert recording:
- what was the purpose of the recording? Was it done in a malicious way to try and entrap an individual? If so this would weigh against the use of covert recordings;
- what was the extent of the employee’s blameworthiness? If they were told that recordings must not be made/kept or lied about ever making such a recording, then this would weigh in favour of the employer; and
- what was recorded? If the recording contains confidential business or personal information, then this would be deemed a serious breach of the implied terms of trust and confidence.
In this case Ms Stockham was found to have been flustered and vulnerable and did not use the covert recording in an attempt to entrap her employer. The Tribunal also found that the use of ‘covert recordings’ was not set out specifically in the Phoenix House’s disciplinary policy as amounting to gross misconduct. For these reasons the covert recording was not deemed serious enough to warrant a significant reduction of the award, so what can employers do to protect themselves against such underhanded tactics?
- Address the use of covert recordings within company policies and procedures. The Employment Appeal Tribunal highlighted the fact that it is ‘relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure’. It may therefore be advisable for employers to specifically record that the taking of covert recording of any meetings may constitute gross misconduct. This would provide a stronger position for an employer to either dismiss an employee or seek to argue a reduction in compensation.
- General announcement to employees that they should not record any meetings unless they have approval from all parties.
- Ask attendees to confirm that they are not recording the meeting. Ingrain this principal into the employer’s policies when inviting employees to meetings via email/letter – make specific reference in the invitation that covert recordings will be classified as gross misconduct and disciplinary action will follow. It is likely that a more significant reduction will be made to a Claimant’s award if it is found they have gone against the employers notice to not covertly record.
Ultimately each case will rely largely on its own set of facts and circumstances so there is no blanket rule as to what will happen if an employee is found to have been covertly recording a meeting. By taking the above mentioned steps employers will be in a stronger position when attempting to tackle those who covertly record within the workplace.
Covert recording/monitoring is not only done by the employees, as shown by the case of Lopez Ribalda v Spain  IRLR 60 in which the employer covertly monitored their employees. For more information regarding this issue please read our article on this matter – Covert surveillance of employees who are suspected of gross misconduct – is this a breach of Article 8?
GA Solicitors has a dedicated employment department who can provide advice and assistance on the legal issues surrounding covert recordings. If you would like to discuss any of the issues raised in this article and/or require assistance in updating any disciplinary rules or staff handbooks please do not hesitate to contact Rob Zacal on 01752 513549 or firstname.lastname@example.org