What’s the deal when it comes to covert recording in the workplace by either employer or employee? Will it amount to a breach of contract, or is it a perfectly acceptable way of proceeding? The answer is almost certainly neither!
The issue of covert recording has most recently been considered in Phoenix House Ltd v Stockman (Stockman) where we acted for Phoenix House. Here the Employment Appeal Tribunal (EAT) considered whether the covert recording by an employee of discussions with a Director amounted to a breach of the implied term of trust and confidence. The EAT pointed out that times have changed now that recording is so easy to do, given that most people have smartphones.
The bigger question in this case therefore asks the important question of whether it is reasonable for an employer to dismiss an employee who has recorded a meeting without the consent of the employer.
In Stockman the employee covertly recorded a meeting with a director, complaining about another director’s behaviour. At the employment tribunal, 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 found that 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 a 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).
Good employment practice
The decision in Stockman sets out clear guidance on dealing with covert recordings. The EAT specifically states that “…it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so”.
This practice will entail a proper consideration by both sides of whether it is desirable to record a meeting, and how this should be done.
Considerations for the employee
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. This should of course be seen in the context of sexual harassment allegations and the need to ensure that employers don’t prevent whistleblowing. However, if the employee has been explicitly told not to record a meeting then the position will be different.
Should an employer record meetings?
An employer should not record meetings covertly. It is only in very exceptional cases that this can be done without breaching the Data Protection Act 2018 (DPA 2018).
The Information Commissioner’s guidance on data protection (the Employment Practices Data Protection Code) states the employers may record their employees in secret only in very exceptional circumstances, such as where it is suspected that criminal activity has taken place. This is unlikely to apply to disciplinary and grievance hearings.
Employers may always record a meeting with an employee’s consent. If they do so they should remember that this is personal data and should be processed in accordance with the DPA 2018.
Bear in mind of course that if you record meetings rather than take notes, those recordings will have to be transcribed, and generally become a lot longer than records of meetings that are summarised. This may be a good reason not to record meetings.
Good practice points
It’s worth considering the following good practice points:
- all discussions at disciplinary and grievance hearings, whether public or private, must be appropriate, and only deal with the matters in hand;
- consider recording internal meetings with the consent of all parties to ensure that the record is accurate;
- consider stating explicitly in your disciplinary policy that making a covert recording will constitute gross misconduct; and
- ensure that any notes you make accurately reflect what has been discussed.