With the majority pf people carrying mobile phones which are capable of making recordings, it is not surprising that employers have seen an increase in employees covertly recording work meetings. Many times in the past we have been asked by our clients “what can we do about it?”. Historically, our dejected response has been “not a lot”. Well...not anymore!
A case handed down this month in the Employment Appeal Tribunal (Phoenix House Limited v Stockman) has confirmed that both an employee and an employer should say if there is any intention to record a meeting except in the most pressing of circumstances, and (on the employee’s part), it will generally amount to misconduct not to do so. It follows that it is therefore permissible to discipline an employee for making a covert recording at work.
The level of disciplinary sanction very much depends on the facts. The Employment Appeal Tribunal was keen to emphasise that, contrary to what was argued in the case before it, covert recording of meetings does not automatically amount to gross misconduct (which can result in dismissal without notice). Rather, in determining what level of misconduct has occurred, employers must consider:
- The purpose of the recording
Was it to entrap the employer or gain a dishonest advantage? Or was it merely to keep a record, ensure that the employee was not being misrepresented, or to take advice?
Was the employee told specifically not to make a recording, or did they lie about making a recording? Or was it more innocent and the employee simply did not think about the fact that making a recording would not be appropriate?
Was it a meeting that would usually be minuted in some way, and a record shared, such as a disciplinary or grievance meeting? Or was it a meeting at which highly confidential, or personal information was discussed?
All of those factors are relevant in determining what sanction an employer can impose. Clearly an employee who records a meeting concerning highly confidential business information in order to try and trick the employer, and then lies about it, can justifiably receive a much harsher sanction than an employee who just wanted a record of the meeting, and did not think there would be an issue in taking a recording. As with everything in employment law, each case depends on its facts. Of course if you do wish to take disciplinary action for covert recording of meetings then you will need to follow a full disciplinary process, which we can assist you with.
The key action point for employers here is to review and update your policies. If you do not want your meetings recorded (and our advice is that it should be your general policy that meetings are not recorded by either party), that should be set out in your policies – disciplinary, grievance, bullying and harassment, performance management, and any other policies which envisage meetings being held. Equally, you should update your “misconduct list” in your disciplinary policy to set out that recording meetings covertly is considered to be misconduct, or, in some cases, gross misconduct.
It is also important to note, even if you do have policies in place, and the employee has acted sneakily in making their recording (etc. etc.), those recordings are still disclosable in an Employment Tribunal. So, whilst you may now be able to discipline employees for making recordings, they can still use those recordings against you… so please please please watch what you say.
All in all though, a welcome development for many employers…happy disciplining!
Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance. If you would like more information on the content of this article, please call our Employment Team on 01603 281153.