When can you discipline employees for making a covert recording at work?

The Employment Appeals Tribunal (EAT) has recently held that covertly recording a meeting at work without your employer’s permission can usually – but not always – be treated as misconduct.

In the case of Phoenix House v Stockman, during Employment Tribunal proceedings for unfair dismissal, the claimant disclosed that she had recorded a meeting with HR and then she used the recording as evidence to support her case.

As a general rule, even if an employee covertly records a meeting without their employer’s permission, that recording may be admissible before an Employment Tribunal if it is relevant to proceedings. However, the act of covertly recording a meeting may amount to misconduct and lead to disciplinary action or dismissal, depending on the employer’s disciplinary rules and procedures.

The employer argued that the claimant’s compensation for unfair dismissal should therefore have been reduced to reflect the likelihood that if the employer had known the employee was recording the meeting covertly, this could legitimately have been considered gross misconduct and she would have been fairly dismissed at that point.

The matter reached the Employment Appeals Tribunal (EAT) which held that in this case, the claimant had not recorded the meeting with the intention of entrapment but because she was afraid that she might lose her job. Her compensation was therefore only reduced by 10% in this situation; however, the EAT commented that there will be other cases – such as where the employee is actively trying to entrap the employer by making a recording – when such conduct should be treated much more seriously and may merit dismissal (or a much bigger reduction in compensation).

Employers should consider this issue carefully, given that recordings made by employees are becoming more frequent now that most mobile phones can make voice recordings discreetly.

Tips for employers on avoiding the dangers of covert recordings:

  1. The golden rule is that if an employer wants to rely on this type of behaviour in a disciplinary process then it needs be clear in advance that taking recordings without consent is unacceptable.

  2. Employers should review their disciplinary procedures to ensure that covert recordings in the workplace is specifically mentioned as an example of misconduct or, given the circumstances, gross misconduct.

  3. If an employer is concerned that employees might be covertly recording meetings, then make it clear before meetings that any unauthorised recordings will lead to disciplinary action being taken.

  4. If an employer discovers an employee has covertly recorded a meeting, rather than acting in a knee-jerk way they should consider why they might have recorded the meeting; for example, are they protecting themselves because they have a real concern that their employment is in jeopardy? Or are they looking to record confidential information of the business to use as leverage? The latter is more likely to amount to gross misconduct, but the former could still be misconduct.

  5. Employers should also be aware that it will be a serious breach of contract for them to record their employees at work without consent, and that doing so is likely to entitle the employee to resign and bring a claim for constructive unfair dismissal.