In Phoenix House Ltd v Stockman, the Employment Appeal Tribunal (EAT) has confirmed that covert recording of a meeting is not necessarily an act of gross misconduct entitling the employer to dismiss summarily.
The claimant, Ms Stockman, was employed at the respondent company. Following a restructure, she was placed into a more junior role, about which she raised a complaint to her line manager.
A meeting took place between senior members of her team, which the claimant interrupted. She demanded to know what was being discussed (on the basis she assumed it was about her complaint). When asked to leave, she refused to do so.
The claimant was subsequently called into a meeting with HR, at which she was informed that she would be disciplined. Unbeknownst to the company, the claimant recorded this meeting. The claimant raised a grievance and was subsequently dismissed. At this point, the company still did not know that she had recorded the meeting.
The claimant brought a successful unfair dismissal claim at tribunal, during which she produced the covert recording in support of her evidence. The tribunal allowed her to use the recording, but reduced her compensation by 10% on the basis of her conduct in covertly recording the meeting.
The company appealed, arguing that had it known that the claimant had covertly recorded the meeting, it would have dismissed her for gross misconduct (as covert recording involves dishonesty) and therefore her compensation should be reduced to nil.
The EAT rejected the company’s appeal. It held that covertly recording a meeting will generally amount to misconduct, but that it does not automatically undermine trust and confidence and is therefore not necessarily an act of gross misconduct.
The EAT gave some further guidance on covert recordings, explaining that the purpose of the recording, the subject matter of the recording and the employer’s attitude to covert recording will all be relevant factors in determining whether it amounts to gross misconduct or simply misconduct.
Here, the claimant had only recorded a personal meeting about her own employment, not a broader meeting containing confidential business information. There were a number of plausible reasons to record the meeting; simply to keep a personal record; to protect against misrepresentations as to what was said; or to enable her to obtain legal advice. These were legitimate reasons to record the meeting and so the tribunal was entitled to find that she did not record the meeting for entrapment purposes (which would more likely be gross misconduct).
The tribunal was therefore entitled to find that it was unlikely that the company would have dismissed the claimant fairly for covertly recording the meeting had it known at the time and compensation should not be reduced further.
Employers should not assume that all acts of dishonesty amount to gross misconduct – all factors should be considered before arriving at that conclusion. It would be sensible for employers to check their disciplinary policies to make sure that covert recordings are referenced as acts of misconduct or gross misconduct.
An employer might also be tempted to ask employees before private meetings to confirm that they are not taking a recording. However, there is a danger that this might backfire by planting an idea in an employee’s head which was not already there.