Now that mobile phones make it easy to record meetings, employment tribunals often find themselves considering evidence in this format. A growing number of employees now covertly recording meetings with employers, and important clarification on the legal issue has been issued.
The Employment Appeal Tribunal (EAT) has stated that ideally the party making the recording should give advance warning of any plans to record a meeting. For an employee, failure to do so would generally be considered misconduct.
But the EAT has also said that exceptions should be made in ‘the most pressing of circumstances’. This could be, for instance, when a vulnerable employee reasonably feels they need an accurate record of a meeting to protect themselves against possible misrepresentation.
The EAT’s guidance came as it handed down judgement in the case of Mrs Tatiana Stockman who had worked in the finance department of the alcohol and drug addiction charity, Phoenix House.
Following a complaint that she was unfairly treated in a restructuring process, she secretly recorded a meeting with the company’s head of human resources.
She was dismissed several months later, following grievance and disciplinary proceedings. She went on to win her claim for unfair dismissal in the Employment Tribunal but her compensation was reduced by ten per cent because of the covert recording.
Phoenix House appealed to the EAT arguing that the compensation should be reduced by 100 per cent, in other words, to nothing at all. Its case was that if it had known Ms Stockman had secretly recorded the meeting – something which only came to light at the tribunal hearing – it would have fairly dismissed her anyway.
The EAT dismissed the appeal. It said covert recording was not outlined specifically in the charity’s disciplinary policy and that the recording was not made to entrap it. The original ten per cent reduction in compensation remained.
Covert recordings here to stay
There is no doubt that although covert recordings may be frowned on, they are here to stay. In fact, some employment lawyers now believe that more than half of all disciplinary meetings are secretly recorded by employees.
In the absence of an explicit warning in a company’s disciplinary policy, it is highly unlikely that a covert recording for recordkeeping purposes will be classified as gross misconduct.
On the other hand, lying about a recording or recording a meeting to entrap an employer, or where confidential company information is disclosed, is likely to harm a party’s case.
What should employers do?
Employers should review their disciplinary policies to ensure there is section which covers covert recordings. The wording should make it clear that covert recording can be deemed misconduct and in some circumstances, gross misconduct.
They could also ask at the beginning of a meeting whether an employee intends to record the meeting, and if so, ask them not to do so. Alternatively if the employer intends to record the meeting they should advise the employee in advance, and be prepared to provide a copy of the recording to the employee.