It is very easy indeed with the advent of mobiles phones for an employee to secretly record a disciplinary or other internal meeting on their mobile phone. The case of Phoenix House Ltd v Stockman EAT provides us with helpful guidance on how to deal with this situation.
S. secretly recorded an informal meeting with the head of HR. She was subsequently successful in a claim of unfair dismissal. S’s employer argued at the remedies hearing – where the value of the tribunal award is determined – that had it known about the recording before S was dismissed, it would have been justified in summarily dismissing S for gross misconduct and so no compensation should be awarded.
The EAT held that a covert recording will generally be misconduct but not necessarily amount to gross misconduct. In determining the seriousness of the disciplinary offence, an employer should consider all the circumstances such as:
- why the employee made the recording? Was it done deliberately to entrap the manager into making an admission or was the employee keeping a record to avoid misrepresentation or to enable her to get advice.
- was the employee blameworthy in making the recording e.g. did she lie about making a recording, was she specifically told not to?
- what was recorded? An employee recording confidential information or personal information about another employee is more likely to be at fault.
- is there any evidence of the employer’s attitude to such conduct? The EAT found that in this case the employer did not specifically mention covert recording as an example of gross misconduct in its disciplinary procedure.
Although the EAT held that there was no evidence of entrapment and so it would not have been fair to dismiss S. because of the recording, it still punished S. by making a 10% deduction from her compensatory award.
Employers are often wary of this practice being carried out, even with their knowledge, as it can inhibit a frank exchange of views. Both open and covert recordings are potentially admissible at tribunal. In another case the recording of an investigatory meeting and then the subsequent private conversation between the company representatives in which sexist comments were made, were held to be relevant and admissible evidence.
What steps should employers take?
In the light of these cases, prudent employers will want to review their policy on whether and in what circumstances, to allow electronic recordings of meetings and revise their disciplinary procedures accordingly. At the outset of disciplinary and grievance hearings employers should (where appropriate) remind employees that such recordings are prohibited and ensure that managers conduct themselves professionally.
Other articles from September's newsletter
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