IT has become increasingly common for employees to secretly record meetings with their employer. In an age of smartphones, the question arises as to the legality of such covert recordings.
In the recent decision of Phoenix House Limited v Stockman, the Employment Appeal Tribunal (EAT) dealt with and issued guidance on hidden recordings of meetings by employees.
Mrs Stockman was a financial accountant for Phoenix House Ltd. Following reorganisation, she obtained a lower position. She alleged she had been treated differently throughout the process. A meeting was organised with HR which the claimant covertly recorded on her mobile phone. She was dismissed and subsequently lodged an unfair dismissal claim in the employment tribunal. The employer only found out about the recording during the subsequent employment tribunal litigation.
The claimant won her unfair dismissal case, but her tribunal award was reduced by 30 per cent, 10 per cent of which was attributed to the covert recording.
An appeal was lodged by Phoenix House on the grounds that no award of compensation should be made to Mrs Stockman because the covert recording amounted to a breach of the implied duty of trust and confidence and had Phoenix House known about the recording at the time, they would have dismissed her for gross misconduct in any event .
The EAT upheld the employment tribunal’s decision to only apply a 10 per cent reduction of the award to the covert recording. When determining the severity of the misconduct, the following factors were considered that:
• Mrs Stockman was flustered making the recording and uncertain whether the recording had been successful;
• She did not make use of the recording as part of the internal proceedings;
• The meeting had not been of a highly confidential nature and would have been minuted;
• The recording contained elements detrimental to Mrs Stockman’s own case.
Further, it came out in evidence during the appeal that the covert recording of meetings was not set out as an offence in the employer’s disciplinary procedure before dismissal nor had it been added as an offence at the time of the EAT appeal.
Whilst the decision of the EAT is not binding in Northern Ireland, the guidance offered by the EAT is helpful. In particular, the EAT stated that a tribunal is not bound to conclude that the “covert recording of a meeting necessarily undermines the trust and confidence between employer and employee” to justify dismissal. As such, a tribunal will be entitled to make an assessment of the circumstances on a case-by-case basis.
In making its determination, the tribunal may consider relevant the purpose behind the covert recording which can range from highly manipulative with the intent to entrap, to a confused and vulnerable employee seeking not to be misrepresented.
It may be relevant for the tribunal to consider the employee’s blameworthiness, for example, was the employee told not to make a recording or did the employee lie about making a recording.
Finally, the content of the recorded meeting may be relevant in that the meeting may contain confidential business information or relate to the employee and is likely to be transcribed.
Taking on board the advices provided by the EAT, it is recommended that employers address the issue of recordings in a policy including any disciplinary policy. And prior to any meetings, employers should address the issue of the recordings and make sure everyone is clear as to whether a recording is taking place or not.
:: Seamus McGranaghan (seamus.mcgranaghan@oreillystewart.com / 02890 321 000) is director of commercial at O’Reilly Stewart Solicitors.
