Covert recording was not a breach of the implied term of trust and confidence
In Phoenix House Ltd v Stockman the Employment Appeal Tribunal (EAT) considered whether the covert recording by an employee of discussions with the employer's Director of Resources amounted to a breach of the implied term of trust and confidence. It concluded that it was not.
The claimant made a number of allegations of mistreatment and complained that a restructure process which the respondent had recently undergone (and in which she had failed to obtain the role she wanted) was discriminatory. Following a dispute with the Finance Director, the claimant met the organisation's HR Director and covertly recorded the conversation she had with her.
Disciplinary proceedings were instigated and the claimant raised a grievance. Following a decision to impose a written warning, and to dismiss the grievance, and the claimant's appeal against both these findings, the relationship between the claimant and the respondent continued to deteriorate. Eventually, following a conclusion that there had been an irretrievable breakdown of trust and confidence, the claimant was dismissed.
At first instance the tribunal found that the recordings were not something that could give rise to a breach of trust and confidence. It pointed out that the making of covert recordings was not set out specifically in the respondent's disciplinary policy as amounting to misconduct or gross misconduct.
The EAT agreed with the tribunal, pointing out that times have changed. While in the past an employee, or employer, would have had to go to a lot of trouble to covertly record a meeting, leading to the straightforward conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage, in these days of mobile phones it's possible to record conversations with ease.
In the EAT's experience it is no longer uncommon to find that an employee has recorded a meeting without saying so, and this recording will not necessarily have been undertaken to entrap or gain a dishonest advantage. The EAT pointed out that the recording could have been done to keep a record, or to protect the employee from any risk of being misrepresented when faced with an accusation or an investigation.
In looking at a situation in which a covert recording has been made, a tribunal will have to assess all the circumstances, including the purpose of the recording. The extent of the employee's blameworthiness may also be relevant and 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". What is recorded will be relevant too (whether it's a meeting which would generally have a shared record made, or where highly confidential or personal information relating to the employer or another employee is discussed).
The EAT concluded that while it was still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure, this may soon change.
Take note: Stockman has confirmed that, although an employee covertly recording a discussion will generally be guilty of misconduct, their behaviour is unlikely to constitute gross misconduct (though this will also depend on what, if anything, it says in the employer's disciplinary policy).
It seems that if a recording is used for the purposes of keeping a record, or for seeking to obtain advice, rather than to entrap the employer, then there will be no breach of the implied relationship of trust and confidence. However, if the employee has been explicitly told not to record a meeting then the position will be different.