We are often asked about whether an employee should be allowed to record a workplace meeting such as a disciplinary or grievance meeting or what to do if the employee has already clearly done so without informing those present at the meeting in advance.
The recent EAT case of Phoenix House Ltd v Stockman looks at the latter of what is possible where a covert recording has been made by the employee.
Ultimately, it will depend on the particular circumstances of the case involved, but the EAT was clear that if an employee makes a covert recording while at work that will not necessarily amount to a breach of trust and confidence entitling the employer to dismiss them summarily.
Therefore employers who find that an employee has made a covert recording will not necessarily be able to lawfully dismiss them without notice (summarily) or successfully obtain a reduction in the compensation that the employee might be awarded if they are unfairly dismissed due to their conduct.
The EAT’s decision provides a helpful indication of relevant factors to judge whether the employee’s actions will amount to a breach of the term of trust and confidence including:
- what is recorded. For example, is it highly confidential information or material that would have been shared anyway?;
- the purpose of the recording. Is it to entrap or simply assist recall?;
- the extent that the employee is to blame for making a recording. For example, did the employee make the recording contrary to an instruction or has the employee not even thought about it?; and
- any evidence of the attitude of the employer to such conduct. For example, does the employer list it as an example of gross misconduct in its internal policies?).
The latter factor highlights an interesting point as it is probably the case that most employers’ policies do not make it clear that covertly recording a workplace meeting may give rise to disciplinary action.
In the light of this decision, we recommend that employers review and amend their policies where this is the case, making it explicitly clear that any recording of such meetings will not be permitted without the consent of all those attending and that prior consent should be obtained in writing from HR or a senior manager or director in advance of the meeting. It may well be that there will be very limited occasions when an employee will be permitted to record the meeting but this does provide the flexibility to agree to it in appropriate circumstances.
If you would like to discuss this decision and/or if we can assist you in amending your existing policies to address this issue, please do get in touch.