News & Insights: Employment

Handling Covert Recordings in the Workplace

21 August 2019

In a recent decision, the Employment Appeal Tribunal (EAT) has issued guidance on covert recordings of meetings by employees.

The employee was a financial accountant for Phoenix House Ltd. Following a reorganisation, the employee obtained a lower position. She alleged that she had been treated differently throughout the process. A meeting was organised with HR which the Claimant covertly recorded on her mobile phone. She 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. An appeal was lodged by her employer that no award of compensation should be made to the Claimant because had her employer 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% reduction of the award to the covert recording. When determining the severity of the misconduct, the following factors were considered: –

  • The employee was confused and flustered making the recording and not entirely sure whether the recording had been successful
  • The meeting had not been of a highly confidential nature
  • The recording contained elements detrimental to the employee’s 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 not had it been added as an offence at the time of the EAT appeal.

Offering guidance on covert recordings for employers, the EAT stated that a Tribunal was not bound to conclude that the “covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation…The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others).”

In short, the circumstances surrounding and of covert recordings will need to be assessed on a case by case basis.

Whilst the decision of the EAT is not binding in Northern Ireland, the guidance is helpful.

It is recommended that employers address the issue of recordings in a policy including any disciplinary policy, and prior to any meetings address the issue of the recordings and make sure everyone is clear as to whether a recording is taking place or not.

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