I wrote an article on this subject in 2016 and it remains one of the most common enquiries we get asked.

The recent EAT case Phoenix House Limited v Tatiana Stockman throws some further light on the Tribunal’s view of this issue and provides useful guidance for employers.

Mrs Stockman ran a successful unfair dismissal case against her former employer. The EAT was asked to reduce her compensation to nil because she had covertly recorded a meeting with an HR representative, a fact her employer was not aware of when she was dismissed.

At the remedy hearing, and in the EAT, Phoenix argued that, had they known about the covert recording, they would have dismissed Mrs Stockman for gross misconduct, and that she should not receive any award from the Tribunal.

Their lawyers argued that a covert recording, in the absence of a “pressing justification” was a breach of the implied term of trust and confidence; and that Mrs Stockman must have been trying to entrap the manager she secretly recorded.

The judge’s conclusion recognises the times we are now in: “Most people carry with them a mobile telephone which is capable of making a recording…it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage.”

The judgment goes on to say: “We do not think that an ET is bound to conclude that the covert recording…necessarily undermines the trust and confidence between employer and employee…An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant”. The additional circumstances will include: was it a meeting where a note would normally be kept anyway? (or did it include more sensitive or confidential information?); and was the employee specifically told not to record?

The EAT concluded that an employee may record a meeting for a variety of reasons, including to keep a record, protect the employee from a risk of misrepresentation, or to help the employee to take legal advice. It would be good practice to inform an employer of an intention to record a meeting and not doing so would usually amount to misconduct. The Tribunal concluded the employee in this case had not recorded her employer in order to entrap it. She had recorded one meeting relating to her own position at work rather than her employer’s confidential information. The EAT decided on the facts of this case, it had been reasonable for the original Tribunal to reduce her compensatory award by 10% (only) to reflect that conduct.

The EAT commented that it is relatively rare for recording a meeting to appear on an employer’s list of gross misconduct offences in a written disciplinary procedure. This case may encourage employers to review their own policies and include it. But, do be aware while the EAT concluded that it will generally amount to misconduct for an employee to not to tell an employer they are recording a meeting, this would not necessarily amount to gross misconduct. A disciplinary sanction and/or dismissal on this would need to be a reasonable step for an employer to take in the circumstances, in order to avoid the risk of a successful employment claim.

Key points:

  • Although the Tribunal (in general) may still take a dim view of covert recording, decisions on admissibility of covertly recorded evidence (and the potential effect on compensation) will rest on the facts of each case.
  • Review your disciplinary procedure to consider adding covert recording as a potential act of misconduct/gross misconduct.
  • Review your policy on recording hearings (whether disciplinary, grievance or capability etc.) in any case. Many employers now prefer an audio recording for formal hearings, that can be transcribed relatively quickly, recorded with the employee’s consent.
  • If you don’t want any recording (by either party) then state this in your policies, and make it clear at the start of every such meeting.
  • Train your managers and HR staff accordingly.
  • A further consideration to take into account is the privacy or data protection rights of those recorded without their consent.
  • It is safest to assume you are being recorded in any HR meeting when dealing with employees, so take care with what you say!