Covert recordings: Misconduct or a breach of trust and confidence?

The Employment Appeal Tribunal (EAT) has found that, although it is good practice for employees and employers to state whether they intend to record a meeting and that "it will generally amount to misconduct not to do so", this is not necessarily a breach of the implied term of mutual trust and confidence (Phoenix House Ltd v Stockman & Anor)

The EAT outlined the relevant factors to take into account when assessing whether the implied term of trust and confidence had been breached:

• Why was the recording made: to keep a record of the conversation or to entrap the employer?
• The content of the recording: fairly informal or highly confidential? 
• The culpability of the employee: were they very new or inexperienced - or aware that covert recordings are not permitted?  

In this case, the employee had not recorded the meeting to entrap her employer, there was no confidential information involved and other colleagues were not mentioned, so the EAT found that there hadn't been a breach of the implied term of trust and confidence.

Comment

In an age of readily available smartphones and other recording devices, the EAT acknowledged that it is easier than ever before to secretly record meetings. In that context, it may not necessarily follow that any such recording has been undertaken maliciously. To help counter the risk of being covertly recorded, employers are advised to consider: 

• having a clear and accessible policy stating that any internal meetings/hearings cannot be recorded without the consent of all involved;
•  listing this as an example of gross misconduct in their disciplinary policy (and remind employees of this when opening any hearing);
•   asking employees to turn off their phone or any other devices in meetings and to confirm that they are not recording before proceeding – and to postpone any meeting where they are uncertain whether or not it is being recorded without their consent. Even if the employee goes on to covertly record the meeting and that evidence is admissible at Tribunal, this will still cast doubt on the employee’s credibility.  

Nevertheless, given that there is always a risk that employees may be making covert recordings at work, anyone involved in holding meetings with employees should be careful about comments, discussion or jokes made during any internal meetings and adjournments (even where the discussion seemingly does not relate to the purpose of the meeting), in case the whole recording could later be disclosable to an Employment Tribunal. 

This article was drafted by Lucy Flanagan, a member of the Employment team in Leeds.

Phoenix House Ltd v Stockman & Anor