Have you been tempted to record a meeting at work? Or have you come across an employee who has covertly recorded a meeting you had with them? What are the legalities to recording a meeting secretly at work? Here we discuss whether an employee is breaking the law if they secretly record a meeting.
Example case study of covert recording at work:
A topical case in the Employment Appeals Tribunal (EAT), Phoenix House v Stockman has made clear that it would be misconduct for an employee to make a secret recording at work “except in the most pressing of circumstances.”
The case involved Mrs Stockman who worked as a financial accountant for a charity and complained of unfair treatment when they restructured the company. When she discussed the matter with HR, she decided to secretly record the meeting and did not disclose of the matter until her unfair dismissal claim.
This was appealed by the employer because the claimant’s compensation for unfair dismissal should be reduced based on the Polkey principle that reflects Mrs Stockman’s secret recording which they considered as misconduct. The employment tribunal disagreed with this.
The Respondent employer argued that Mrs Stockman’s conduct in creating the covert recording meant she had broken the implied term of trust and confidence.
The EAT, noted how simple it is now for employees to make covert recordings and said that, in its experience, it is not unusual to find an employee has recorded a meeting without disclosing it. Such recordings are not essentially assumed to entrap or gain a dishonest advantage said the EAT. The employee may have secretly recorded a conversation to protect the employee from any risk of being misrepresented when faced with an accusation or an inquiry, or to enable the employee to obtain advice from a union or solicitor.
How to assess whether a covert recording breaches trust:
The aspects to be considered when evaluating whether a secret recording breaches the trust and confidence term include:
- The reason of the recording for example, was their intention to manipulate or entrap the employer? Or were they simply confused and vulnerable and wanted to avoid being misrepresented?
- The liability of the employee: is the employee aware that a recording is not allowed and then lies about it? Or were they unaware of this matter and they were under the impression that you can record a meeting covertly.
- Consider what has been recorded: is it a meeting where these details would typically be kept and shared or one where extremely confidential or personal information is discussed?
- Usually the reason for the covert recording will be to ensure that they can have an accurate version of what was discussed. This is true often in disciplinary, poor performance, grievance and dismissal meetings
Ensure you include a clause about covert recordings in your Company Policy or Handbook
We have found that many disciplinary procedures do not explicitly mention covert recordings are an example for gross misconduct. It is a good idea to include such a clause if the employer wishes to protect themselves in the future.
JMR solicitors are specialists in commercial employment law for businesses. We can help your business with:
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For more information with any of the above or if you have found an employee secretly recording a meeting, please contact JMR Solicitors on 0161 491 3933.