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Case law: Tribunal clarifies issues around secret recording of meetings by employees

Employers and employees will welcome clarification of factors to take into account when considering whether secret recordings of meetings, conversations, etc by employees amount to gross misconduct, and breach the implied duty of mutual trust and confidence between employers and employees.

August 2019

This update was published in Legal Alert - August 2019

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee won an unfair dismissal claim but, during the legal proceedings, it emerged that she had secretly recorded conversations during her employment.

Her employer argued that had it known about this at the time, it might have been able to discipline her for misconduct (unless she had been able to put forward a ‘pressing justification’ for making the secret recording). It therefore argued that it would be just and equitable to reduce her compensation for the unfair dismissal to take account of this.

The Employment Appeal Tribunal (EAT) rejected the employer’s argument. It said when assessing compensation, a tribunal was not bound to treat the making of secret recordings as an automatic breach of the implied term of mutual trust and confidence between employer and employee. Helpfully, it referred to factors for employers to consider if employees were found to have made such recordings, including:

  • Reasons for making a secret recording could range from trying to trap an employer into saying something incriminating, to an employee trying to protect themselves from an employer misrepresenting what they had said, or making a record of a meeting so they can obtain advice from a union. In this case there were no indications the employee was trying to entrap anybody, and she did not ask leading questions to get the answers she wanted. Nor did she actually use the recordings during the hearing of her case.
  • The content of a recording could be relevant – for example, if the recording is of a meeting where minutes were being kept anyway, or it included very sensitive or confidential information about the business or other people, which could seriously breach their rights.
  • A recording may have been made against an express instruction not to, or an inexperienced or distressed employee may not have even considered whether recordings might not be allowed.
  • The attitude of the employer to making recordings may be relevant. In this case, there was no mention in the employer’s disciplinary policy that making secret recordings would be gross misconduct; nor had the employer since changed its policy to include it. Indeed, the EAT pointed out that making secret recordings is very rarely mentioned as an example of gross misconduct in company disciplinary procedures generally.

The EAT went on to say that employers and employees should, as a matter of good practice, tell each other if they intend to record meetings or conversations. Failure to do so will be misconduct in all but the most pressing of circumstances.

Operative date

  • Now

Recommendation

  • Employers should consider whether to prohibit secret recordings by employees in their disciplinary policies or, if they do not, consider expressly prohibiting them whenever a situation arises where there is a risk of such recordings being made.

Case law: Phoenix House v Stockman UKEAT/0284/17/00, UKEAT/0058/18/00

Please note: An article published in the August 2016 edition of Legal Alert covered this case at an earlier stage in the legal process.

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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