Yes, held the Employment Appeal Tribunal (EAT) in the case of Phoenix House Ltd v Stockman, a covert recording by an employee during an internal meeting could be admissible in Employment Tribunals depending on the relevance of the recording.
Christine Jamieson, Paralegal in our Employment team, explains the background to this case and warns employers to be aware that covert recordings could be admissible.
Ms Stockman was employed in the finance department at Phoenix House, a charity. Following a restructure in which her post was removed, Ms Stockman applied for and obtained a more junior role.
She complained to her manager that the director had been treating her differently since the restructure and was biased against her. Ms Stockman interrupted a meeting between her manager and the director discussing her complaint demanding to know what was said, and refused to leave.
Later that day, Ms Stockman was invited to a meeting with HR, which she secretly recorded. This only became apparent during her Tribunal claim. She was told that she would be disciplined for her earlier conduct. Ms Stockman lodged a grievance complaining that the director had unlawfully harassed her and she could no longer work with him. The disciplinary offence was upheld and the grievance dismissed.
Ms Stockman was later dismissed on the grounds that the relationship of trust and confidence had irretrievably broken down. She submitted a claim for unfair dismissal.
An Employment Tribunal held that Ms Stockman’s dismissal was unfair and that evidence from the covert recording was admissible as it was not used for the purpose of entrapment. However, the compensatory award was reduced by 10% to reflect her conduct.
Phoenix House appealed the decision and the Tribunal’s approach to the covert recording. Its position was that had it known about the recording, it would have dismissed Ms Stockman for gross misconduct and her compensation should be reduced to nil.
The general rule established by case law is that an employee may be able to rely on a secret recording of an internal meeting where all parties are present with their employer, if the relevance of the recording can be shown. Any recordings of private discussions of an employer’s disciplinary panel will not be admissible.
In the case of Chairman & Governors of Amwell View School v Dogherty, the EAT held that an employee’s covert recording of her own disciplinary hearing could be used in evidence before the Tribunal. However, parts of the recording relating to private considerations of the employer were excluded on grounds of public policy.
The EAT dismissed the appeal and commented that it will generally amount to misconduct for an employee to covertly record an internal meeting, although it would not normally result in a breach of the implied term of trust and confidence.
An employee may have legitimate reasons for recording a disciplinary or investigation meeting, however, it is good practice to inform an employer of their intention to record a meeting.
Christine Jamieson, a Paralegal in our Employment team commented;
“The decision confirms that covert recordings by employees may be admissible by Employment Tribunals and that making such recordings is more likely to be regarded as misconduct than gross misconduct. However, the potential sanction for covertly recording a meeting will be affected by an employer’s attitude to a recording and the extent to which employees have been informed that recordings are not permitted - for example in the disciplinary policy.
“This judgment may encourage employers who are particularly concerned about covert recording to review their disciplinary procedures to ensure that covert recording in the workplace is specifically mentioned as an example of gross misconduct.”
