It’s easy to record conversations secretly on smartphones. If that happens in the workplace, can the employee who has made the recording be dismissed, and can the covert recording be used in evidence?
In the Employment Appeal Tribunal (EAT) case of Phoenix House Ltd v Stockman an employee had made a covert recording of a meeting with her colleague. The employer argued that the covert recording was a breach of trust and confidence and had they known about it, they would have dismissed the employee for gross misconduct. They argued that she was not entitled to any compensation.
The EAT held that making the covert recording did not automatically mean the employee should be dismissed, or that her compensation for unfair dismissal should be reduced. Whether making a covert recording at work is a sacking offence depends on an assessment of all the circumstances, for example:
- the content of information recorded: is it highly confidential, or information which only concerns the employee?
- the purpose of the recording: is the employee acting maliciously and intending to entrap the employer, or simply to assist their recollection of the meeting?
- the extent of blame of the employee: was the employee aware that they were not permitted to make the recording, or was it done innocently?
- evidence of the employer’s approach to covert recordings: is it listed in the employer’s policies as gross misconduct?
Employers should make their views about recording meetings known clearly, and may want to list covert recording as an instance of gross misconduct. If a covert recording is made, employers should consider the specific circumstances before moving to disciplinary action.
Evidence that has been covertly recorded may well be admitted by an employment tribunal. Besides having good policies and practices to discourage covert recording, employers should be mindful that their conversations may be recorded and aim not to say things that they might regret when played back.