Employment Law: Use of Covert Recordings at Work
5th September, 2019
This is an issue that has cropped up several times recently, the latest being the case of Phoenix House v Stockman.
The case revolved around a restructure being undertaken at the claimant’s business where the employee claimed that they had been subjected to unfair treatment during the process. The employee had covertly recorded the conversation she had with her employers HR representative and produced this in evidence at a Tribunal to support her claim which she won.
The employer appealed the decision on the basis that had they known of the recording they would have dismissed the individual, on the basis she had breached the implied duty of mutual trust and confidence. Consequently, the employer asked that the compensation award to the employee should be reduced to reflect this fact.
The Employee Appeal Tribunal (EAT) did not uphold the appeal and commented that employees may not be recording meetings to gain a dishonest advantage or ‘entrap’ employers. Instead to keep a record of what is discussed, or to protect the employee from being subject to any investigation, or to enable an employee to obtain further advice. It was on this basis which the EAT reached their decision because there was no confidential information involved and as a result, there was no breach.
A previous case of Punjab National Bank (International) Ltd v Gosain, illustrates where the employee had recorded an investigatory meeting without informing her employer and continued to record the private conversation between her employer’s representatives once she had left the room. The recordings highlighted that key points which the employee had raised were deliberately being ignored by the employer. In addition, the Bank’s Manager went on to make several degrading and sexist comments in relation to the employee which were all recorded. The Employment Tribunal held that the recording was admissible as evidence as it was relevant to the issues of the case. The Punjab National Bank appealed to the EAT, but that appeal was dismissed.
So, what can you do as an employer?
The EAT in the first case did state that it ‘considered it good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances - and it will generally amount to misconduct not to do so’. And provided three potential tests:
- The purpose of the recording: is the employee trying to entrap the employer or an employee who wants to keep a record and guard against misrepresentation?
- The blameworthiness of the employee: is this an employee who’s been specifically told that a recording must not be made and then lied about?
- What has been recorded: is what is being recorded a standard meeting or highly confidential or personal information relating to the employer or another employee is discussed?
- It is becoming significantly easier with the continuing development of Smartphones for covert recording to be made and it would appear good practice for employers to follow several best practice tips in order to avoid such issues.
The EAT stated in their judgement, it would be considered best practice for an employer or an employee to state when they had intention to record a meeting. Also, employers should ask employees at the start of any confidential meetings, whether they are recording it and making it clear that if they are, it may be regarded as misconduct. Further, it is advisable that employers should make it clear within their disciplinary procedures, whether a covert recording may be considered misconduct.
Despite the above cases, Tribunals have shown to exercise their discretion as to whether to admit covert recordings as evidence. These cases illustrate that they will often permit this, where the recordings are not privileged and include evidence that is potentially relevant to the case.
If you are needing support with reviewing your disciplinary policy or seeking advice on any other areas of employment law, get in touch and cHRysos HR can assist you.
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