Does covertly recording a meeting count as misconduct?

In the recent case of Phoenix House v Tatiana Stockman, the Employment Appeal Tribunal was asked to decide whether an employee covertly recording a meeting can be classed as misconduct?

Brief facts of the case

Mrs Stockman (“Mrs S”) was employed by Phoenix House (“PH”) between March 2010 and November 2013. In May 2013 following a department restructure Mrs Stockman’s role was made redundant, although she successfully applied for another role within the department.

Shortly after starting in her new role Mrs S raised a grievance regarding the treatment she received from her manager and alleging that the restructuring process was biased against her. 

Mrs S manager arranged a meeting to discuss Mrs S’ complaint, Mrs S was not formally invited to attend this meeting. Mrs S however attended the meeting demanding to know what was being discussed. The manager explained that the meeting was private and asked Mrs S to leave the room a number of times. Mrs S eventually left the meeting stating that she was going to raise a grievance.

Mrs S proceeded to lodge a grievance against her manager

Mrs S was then informed by PH’s Director of Resources that she was facing disciplinary action for her actions when she barged in to the private meeting and refused to leave. 

A disciplinary hearing was convened and Mrs S was given a 12 month formal written warning, which she appealed, and was placed on authorised leave until the appeal concluded.

A mediation meeting was held in November between Mrs S and her manager, but this was unsuccessful. Following this mediation meeting, Mrs S attended another meeting with PH where she informed PH she wished to return to work and that she would be able to put the grievance behind her. PH informed Mrs S that the relationship between her and her manager had “broken down irretrievably” and she was therefore dismissed with immediate effect.

Mrs S issued proceedings in the Employment Tribunal (ET) for a number of matters to include unfair dismissal. During the course of the ET proceedings it came to light that Mrs S had covertly recorded the meeting with the Director of Resources where she was informed she was facing disciplinary action. 

In 2017, the ET ruled Mrs S had been unfairly dismissed as she had not been given sufficient notice about the disciplinary hearing and it was unreasonable for PH to find there had been a breakdown in the working relationship between Mrs S and her manager as she had said she would put the matter behind her.

PH appealed the ET ruling arguing that if it had been aware of the covert recording, Mrs S would have been dismissed for gross misconduct.

The appeal

On the issue of the covert recording, the Employment Appeal Tribunal (“EAT”) noted that:

• An ET is not necessarily “bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee.”
• There were a wide range of reasons an employee may covertly record a meeting. These could range from a “highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”.
• Additionally the extent of an employee’s blameworthiness for making a covert recording “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”.
• And, “what is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others).”

Summary

The EAT ruling has confirmed that an employee making a covert recording could be grounds for disciplinary action but that a Tribunal is not bound to find that such a covert recording necessarily undermines trust and confidence. Factors to consider include for what purpose the recording has been made, what has been recorded and the employee’s motivation for recording the meeting.

Our advice is for employers to lay down clear rules surrounding the recording of meetings. These rules can be laid down in the employers handbook, in a separate disciplinary or grievance policy or by advising an employee at the outset of any meeting that covert recordings are strictly prohibited and confirming that a note taker will make an official record of the meeting instead.  In all cases it should be made clear that the making of a covert recording could result in disciplinary action and may result in a dismissal for gross misconduct.

Additionally, at the outset of a meeting the employee should be asked to confirm they are not making a covert recording. If it later transpires that they did make one this could be used in the ET as evidence of their credibility.