Covert recording is not always misconduct, finds EAT

The Employment Appeal Tribunal has clarified when it is acceptable for an employee to make a covert recording of a meeting without it being considered misconduct.

In handing down its judgment in Phoenix House v Stockman last week, the EAT said it was good practice for an employee or employer to reveal their plans to record a meeting, with it generally being considered misconduct if the person making the recording does not do so.

But there is an exception in the “most pressing of circumstances” – such as a vulnerable employee seeking to keep a record or protect themselves against misrepresentation.

The case concerned an unfair dismissal claim brought by Ms Stockman, who worked in the finance department at alcohol and drug addiction charity Phoenix House.

In 2013 a restructure of the finance department was proposed, which meant Stockman’s role would be made redundant. She applied for another post in the department and was successful.

A day after she accepted the offer, she complained that the director of finance, Mr Lambis, was treating her differently and that the restructure was biased against her. She said that a colleague agreed with her view.

When the concerns were passed on to Lambis, he called the colleague and the head of finance – whom the employee had complained to – into a meeting. Stockman walked into the room and demanded that they tell her what the conversation was about, refusing to leave the room when asked.

She was later called to a meeting with the director of resources, which Stockman covertly recorded. She was told that interrupting a meeting and failing to leave would be subject to disciplinary action.

Stockman lodged a grievance, claiming that she had not been provided with a safe place of work and had been unlawfully harassed by Lambis, which had affected her mental and physical wellbeing. She wished to be separated from Lambis with immediate effect because she could no longer work with him.

A disciplinary hearing was held in August 2013 in her absence. She was given a 12-month formal written warning, which she appealed. She was placed on authorised leave until the appeal concluded.

A mediation meeting between Lambis and Stockman was unsuccessful and the head of HR scheduled a hearing to consider whether the working relationship had broken down to such an extent that it was irretrievable.

At this hearing, Stockman said she wished to return to work, would be able to put the grievance behind her, and would be able to work with Lambis in a professional way. However, the person chairing the meeting – a manager from another department – thought the relationship was irretrievable and dismissed Stockton with immediate effect.

The tribunal’s findings

In 2016 the London employment tribunal found Stockman had been unfairly dismissed because she had not been given sufficient notice about the hearing and was not given any real understanding of the case against her.

It said it was unreasonable for the charity to find there had been an irretrievable breakdown in the working relationship between Stockman and Lambis because she said she would put the matter behind her. This was upheld by the EAT.

The covert recording did not come to light until the tribunal. Phoenix House argued that had it been aware of the recording it would have dismissed Ms Stockman for gross misconduct, which would reduce her compensation award to nil.

However, the tribunal found that as covert recording was not set out specifically in the charity’s disciplinary policy, it was not being used to entrap the employer; and Stockman could not be sure that the device was working properly while recording the meeting, it could not be considered gross misconduct. This was upheld by the EAT.

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.”

It said the extent of the employee’s blameworthiness should also be considered in determining gross misconduct: for example, 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.

“It is in our experience still relatively rate for covert recording to appeal on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change,” said judge David Richardson.

The EAT said it was good practice to tell attendees that a meeting will be recorded, to allow both sides to consider whether it is desirable: for example, it might inhibit frank conversation from taking place.

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