A recent ruling about ‘covert’ recordings may mean it is…

If you’ve dealt with disciplinary hearings before, it’s likely you have been faced with a request similar to ‘is it ok if I record this meeting?’ This has become more frequent given the growth of smartphones, and it’s fair to say the most common response to this is ‘no’ (though access to relevant contemporaneous notes is always available).

But what happens if an employee doesn’t ask and covertly records the meeting? A recent case has addressed this.

In: Phoenix House Ltd v Stockman & Anor UKEAT/0264/15/DM, The Tribunal found that Stockman had been unfairly dismissed after a dispute between her and her manager.

During the initial employment tribunal, it transpired that Stockman had made a covert recording of a meeting, therefore Phoenix House appealed the judgement arguing that if they had been aware of the recording, Stockman would have been dismissed for gross misconduct.

However, the EAT upheld the ET’s ruling, saying the reasons the recording was made needed to be considered and that the use of the recording, in this case, was relevant.

Judge David Richardson noted there were a wide range of reasons an employee may covertly record a meeting, from a highly manipulative employee seeking to entrap the employer, to a vulnerable employee seeking to keep a record or guard against misrepresentation.

“It may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording” he said.

Judge Richardson added that the extent for an employee’s blameworthiness should also be considered in determining whether covert recording is gross misconduct.

This case confirms that it would be unusual for covert recordings to be classed as gross misconduct, although this may seem unfair given the responsibilities companies have when it comes to protecting personal data – clearly the very nature of covert recordings would mean the employee has not actively sought permission from those being recorded. However, there will always be circumstances where covert recording would mean gross misconduct may occur.  For instance, what happens if a meeting discussing critical business matters is covertly recorded?

Fortunately, action can be taken to help protect your business! Review your written disciplinary procedures, do they explicitly prohibit the use of covert recordings in meetings? Is there a need to address the broader use of covert recordings in any business-related meetings and even your ‘use of mobile device’ policy?

If you are unsure, get in touch with our HR and Employment Law specialist, David Boland, who can review your current disciplinary and broader policies.

Employment Law is constantly changing. It is important that you regularly assess whether your policies, processes, systems and skills are up to date. Why not complete our free online HR health check which will provide you with an audit of your current HR systems and documents, providing valuable feedback on any areas that may require improvement.