Employee's covert recording of HR meeting not a breach of implied term of trust and confidence

Why care

Employees may make covert recordings of internal meetings with their employer, either to retain a record, as protection against later misrepresentation or in an attempt to entrap their employer, and with the intention of disclosing the recording in the employment tribunal.

In this case, Ms Stockman's employer was unaware of a covert recording made by her, until it was disclosed in employment tribunal proceedings. The Employment Appeal Tribunal (EAT) was asked to consider whether her pre-dismissal conduct in making the recording amounted to misconduct, and so result in a reduction to her compensation for unfair dismissal.

The case

Ms Stockman worked in the finance department at Phoenix House, a charity. She reported to the Head of Finance, Mr Betha, who reported to the Finance Director, Mr Lambis. Following an internal restructure, Ms Stockman moved to a more junior role, and complained to her line manager that she thought the finance director had treated her unfairly during the restructuring and was biased against her. A work colleague supported her concerns.

When Ms Stockman saw the line manager, finance director and her colleague discussing the matter she interrupted the meeting, asked to know what was said, and refused to leave when asked to do so. Later that day, Ms Stockman was invited to a meeting with HR, which she secretly recorded. The recording's existence only came to light during her subsequent tribunal claim. Following grievance and disciplinary proceedings, Phoenix House decided that its relationship with Ms Stockman had irretrievably broken down and she was summarily dismissed.

Ms Stockman subsequently claimed unfair dismissal and disclosed during that process that she had made a covert recording of a meeting with HR. The employment tribunal found the employee's dismissal to be unfair and awarded her compensation, reduced by 10% to reflect the fact that she had made a covert recording. Phoenix House appealed to the EAT that this award should be reduced further, to reflect her pre-dismissal conduct in making a covert recording, which it viewed as misconduct.

The EAT dismissed the employer's appeal and rejected its argument that the covert recording amounted to a breach of the implied term of trust and confidence which would have entitled it to dismiss Ms Stockman. It recognised that it is now easier to make recordings of meetings than in the past and that an employee may want to have a record to later obtain legal or trade union advise or guard against misrepresentation, and not necessarily to entrap their employer. The EAT listed a number of relevant factors which should be considered, including:

• the purpose for making a covert recording
• the nature of what is being recorded which might vary from a record of the meeting to recording confidential information about other employees or the business
• evidence of the employer's attitude to such conduct, such as whether an employee has been told not to record a meeting or whether it appears on a list of examples of gross misconduct in a disciplinary procedure breach of which could undermine the trust and confidence between employer and employee.

The EAT noted that it thought it was uncommon for employers to specifically state that covert recording will be an act of gross misconduct in their disciplinary policies, that it would be good practice for an employee to inform their employer if they intended to record a meeting, and that it would be misconduct if an employee did not.

The EAT held Ms Stockman's conduct was not in breach of the implied term of trust and confidence. She had recorded the meeting only through concern about her own position, and the employment tribunal had been correct in its approach to reducing compensation.

What to take away

Employers should take on board the EAT's guidance as covert recordings are likely to increase. Practical steps to consider are to:

• make covert recordings of internal meetings an example of gross misconduct
• ensure that either the employer or employee informs the other if they intend to record a meeting, and that not to do so may be an act of misconduct
• request that an employee switch off their mobile phone for the duration of a meeting to ensure covert recording is not taking place.