The EAT has issued guidance on the covert recording of meetings by employees.

This case involved an employee who had been the financial accountant of a charity but who had obtained a lower position following a reorganization. She alleged wrong-doing on the part of her employer i.e. that the Director of Finance had treated her differently and that the restructuring process had been biased against her. Following a difficult meeting, she was interviewed by an HR representative. She secretly recorded that meeting. The recording was not known about until it came to light in the discovery process of tribunal proceedings - the claimant had not attempted to use it internally - but, nonetheless, internal action was taken. After disciplinary action, counter grievance, absence from work and a failed attempt at mediation, the claimant was eventually dismissed due to an irretrievable breakdown in the relationship, even though the claimant had said she could put everything behind her and work professionally with the Director of Finance.

The claimant won her unfair dismissal case, although the tribunal refused to order her preferred remedy of reinstatement. The employer appealed the decision and argued that no award of compensation should have been made because, had they known about the covert recording, the claimant would have been dismissed for gross misconduct. However, it came out in evidence at the EAT that, not only had covert recording of meetings not been set out as an offence in the disciplinary procedure before dismissal, it had still not been added as an offence at the time of the EAT appeal.

The EAT concluded the tribunal had been correct to find in favour of the claimant and also that it had been correct to not award reinstatement or reengagement. She had not intended to use the recording to entrap the employer but there had been a breakdown in the relationship - reinstatement was not appropriate. A 10% reduction in compensation could not be interfered with.

In relation to covert recordings, the EAT concluded that the action may, or may not, be a disciplinary offence, although the EAT also said, "...we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so."

The EAT offered further guidance:

"We do not think that an ET is 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. There may, as Mr Milsom [counsel for the employer] recognised, be rare cases where pressing circumstances completely justified the recording. 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). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change."

Practical Lessons

The EAT has given employers (and employee reps) a few hints here. For example, if either party wants to record a meeting, they should normally be up-front about it. Hiding the fact might make it a disciplinary issue, particularly if really confidential or sensitive information is discussed, but don't try to convince a tribunal it's a gross misconduct offence if it's not even important enough to figure in your disciplinary procedures. Even if employers do add covert recording as a gross misconduct offence, it may not be deemed one by a tribunal if the motivation or circumstances point elsewhere.
https://assets.publishing.service.gov.uk/media/5d231765ed915d0bc413baeb/Phoenix_House_Limited_v_Mrs_Tatiana_Stockman_UKEAT_0058_18_OO.pdf