Covert recording at work

Is it a misconduct for an employee to make a covert recording at work? 

There may have been a time when an employee has made a covert recording at work as part of an ongoing ‘work relationship’ problem. Unaware of the recording, colleagues would have expressed a very frank view of the situation, but is this admissible in an employment tribunal?

Gross Misconduct

In the case of Phoenix House v Stockman, the EAT ruled that secretly recording a work meeting did not amount to gross misconduct. 

Due to a restructure at work in 2013, Ms Stockman accepted an alternative role to avoid being made redundant.  She was not happy about the role as she believed that Mr Lambis – Director of Finance, was treating her unfavourably so she shared this with her work colleague.

Later, a meeting was scheduled by the Director of Finance involving the Head of Finance and Ms Stockman’s work colleague to talk about why she was not happy. Ms Stockman became suspicious about this meeting and also attended; when told to leave she refused to.

Ms Stockman was invited to attend a separate meeting with the Director of Resources who told her that her actions amounted to a disciplinary offence. This meeting was covertly recorded by Ms Stockman.   

Ms Stockman felt she had been mentally harassed by Mr Lambis and wanted to separate from him, this was all apparent in her grievance which was reviewed.  

A disciplinary hearing was held on August 2013 due to her behaviour and Ms Stockman was issued with a 12 month written warning which she appealed. 

Despite various meetings after, trying to repair the working relationship and to find an amicable solution between the two, the relationship was deemed beyond repair and had irretrievably broken down, so Ms Stockman was dismissed immediately. 

Unfair dismissal 

In 2016, Ms Stockman submitted a successful unfair dismissal claim due to lack of process as she was instantly dismissed.  Though she had won her case, Ms Stockman did disclose the covert recording without the consent of the Director of Resources.  Phoenix House claimed if they had known about this at the time, she would have been dismissed under gross misconduct.  The company policy states that it is an act of gross misconduct to record covertly surely her actions would reduce her award?

The tribunal and (EAT) found there was no breach of trust and confident as it was not intended to trap her employer therefore the award would stand. 

It is worth noting that despite company policy forbidding covert recording, the tribunal did listen to it in this case to ensure that the case was ‘fairly and justly’ (in line with tribunals obligation 2013).

However, it is still useful to keep covert recording in your disciplinary policy as it is seen as a deterrent for many and therefore most employees are more likely to adhere to the rules.  Employers must be wary about such difficult employees so it is good practice when holding meetings to ensure no bags or coats are brought into the meeting, tell the employee to put their phone on the table, to reinforce strictly no recording.