For the record...can employees secretly record a meeting?

With mobile phones seemingly everywhere these days, almost all of us routinely carries technology that can record — or even film — at the touch of a screen.

This can be great if your cat does something cute, or when the karaoke’s in full flow, but should you use this tech to record private meetings at work?

And, is there anything an employer can do if an employee secretly records private workplace meetings and conversations?

Don’t get me wrong, there can be clear benefits in allowing recording.

It may be a reasonable adjustment, for example, where a disability impacts on the employee’s ability to take a note of the meeting, or could be seen as an appropriate step when an employee is clearly distressed or nervous.

Despite this, employers will often have good reason to avoid illicit recordings, including concerns they demonstrate a lack of trust between employer and employee. A recent case before the Employment Appeals Tribunal (EAT) in Phoenix House Limited v Stockman provides some useful guidance.

Background

Following a reorganisation, Ms Stockman accepted a more junior role as an alternative to being made redundant. However she was far from happy and made her feelings known.

A number of meetings took place to resolve the issue, but to no avail.

Eventually the employer concluded Ms Stockman had such a mistrust of senior management the working relationship had irretrievably broken down, and consequently she was dismissed.

Unknown to her employer, Ms Stockman secretly recorded one of the meetings with human resources.

Her employer only found out after she brought a number of claims against them in the employment tribunal, which decided Ms Stockman had been unfairly dismissed.

The employers suggested though that even if the dismissal was unfair she should not get compensation on the basis the secret recording amounted to serious misconduct. The tribunal didn’t see it that way and only made a small reduction in her award.

The employer appealed this decision.

EAT decision

The EAT dismissed the employer’s appeal and made the following important findings —

Secretly recording a meeting may be commonly seen as reprehensible behaviour, but will not automatically amount to gross misconduct

  • It is important to look at the reasons why the employee recorded the meeting. These might range from the highly manipulative employee seeking to entrap the employer, to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation
  • It’s also important to look at the blameworthiness for making the recording. This may vary from an employee who has been specifically told a recording must not be made 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 is also relevant. There is a difference between recording a meeting where records are normally kept, such as a disciplinary or grievance hearing, and a meeting where highly confidential information about the business or others are discussed

Accordingly, although an employer may have genuine cause for concern about a secret recording, it should not be assumed this is gross misconduct or would reasonably be seen as fundamentally undermining trust and confidence in the employee.

However, there are still steps an employer can take to avoid such recordings.

Switching off

Unless an employer is happy for employees to make recordings in the workplace it should —

  • Make it clear in its disciplinary policy that secret recordings are likely to be seen as gross misconduct
  • Make sure employees are aware of these provisions
  • At the beginning of asensitive or confidential meeting such as a disciplinary hearing, the employer should explain employees are not permitted to record the meeting and ask them to confirm they aren’t

If an employee disobeys clear instructions and records a meeting, it is likely that this will be grounds for disciplinary action for potential gross misconduct.

If the recording is discovered after employment has ended, it may still be used to attack the employee’s credibility at any tribunal and also to seek a significant reduction in any award. Finally, although a tribunal may disapprove of an employee secretly recording a meeting, this does not mean it will refuse to allow the recording to form part of the evidence.

In short, perhaps the best advice is to say nothing at a meeting which you do not wish to hear repeated, verbatim, at a tribunal.

Alanah Mills

Aberdeen-based solicitor Alanah provides employment law, human resources and data protection advice to a wide range of commercial clients.

Posted, 15 August 2019 by Alanah Mills
Categories: Employment | Insights