July 9, 2019
With most employees owning a mobile phone or electronic device capable of voice recording, there has been a huge increase in the number of employees who secretly record conversations or meetings at work. But is doing so misconduct?
This was the question considered by the Employment Appeal Tribunal ('EAT') in Phoenix House v Stockman. The appeal hinged around the employer's argument that the Employment Tribunal had not taken into consideration when dealing with remedy that the employer would have dismissed Mrs Stockman anyway as they had discovered she had covertly recorded a meeting.
The EAT considered that whilst often the covert recording of a meeting could amount to misconduct, it would depend on the circumstances. For example, if the purpose of the recording was to keep an accurate record or protect the employee from being misrepresented, then this would not be the same as an attempt to entrap or gain a dishonest advantage. The content of the recording may also be a factor. A meeting to discuss the employee of which a record would normally be kept, is very different to a meeting to discuss confidential business or personal information of another employee. Finally, evidence of the employer's attitude to such conduct may be relevant. For example, is covert recording included in examples of (gross) misconduct? It is rare for this to be the case but it is something that employers may wish to consider.
If a party wishes to record a meeting then it remains good employment practice to say that it is their intention to record it and explain why.