Covert recording was not breach of trust and confidence by employee

In a case of unfair dismissal, the EAT refused to reduce a compensation award to nil based on the employer’s arguments that the employee had secretly recorded a meeting with an HR Manager during a grievance and ill health related dispute.

The EAT explained that with the prevalence of mobile phones, that can easily record conversations, it can no longer be said that covert recordings by an employee amounts to a breach of the implied term of mutual trust and confidence.

The reason for the recording is relevant – if it was to entrap the employer or to gain an unfair advantage then this may destroy trust and confidence. But the employee may have different reasons such as to keep a record, to protect themselves from a risk of misrepresentation , or to enable the employee to obtain legal advice.

It is, however, the EAT said, good practice for the parties to tell each other if there is an intention to record a meeting and it would generally amount to misconduct not to do so – which is not the same as saying there would be a breach of the above implied term.

The EAT said it was rare for covert recordings to be listed as an example of gross misconduct in disciplinary proceedings.

The EAT suggested that if the employer objected to the recording and wanted to seek a reduction in the compensation to be awarded in a related tribunal case, relevant factors included the nature of what was recorded, the employer’s attitude to covert recordings and the degree of the employee’s blameworthiness.

On a practical level the EAT said that recording of a meeting, even if agreed, could inhibit frank exchanges and for long meetings a written summary would be more valuable.

In my experience, employers will continue to get upset about an employee’s secret recording of a meeting. It suggests the employee does not trust the other people present or is seeking to obtain evidence to throw back at the employer at some later time. On the other hand, employees tend to resort to covert recordings simply because trust has been damaged or lost during a grievance or disciplinary procedure. A subsequent disclosure of the recording invariably then makes matters worse, harming the prospect of securing a satisfactory outcome for both sides.

In my view, it remains best practice to ensure an accurate meeting note is made which is a summary of what is discussed and said. Avoid verbatim records. They are time consuming to prepare with any degree of accuracy and can quickly become too long and difficult to follow. The minute may quote important parts of the discussion such as a confession or admission. The minute should then be shared quickly with the employee so that she or he has a fair opportunity to suggest revisions. The agreed version should then be signed and dated by both sides.

On a practical level, it is time consuming and expensive to have a recording transcribed and employers should decide their approach to the recording of meetings and how they will treat unauthorised secret recordings by employees. The EAT decision is likely to see more employers add covert recording as an example of gross misconduct. Even so, it would be unwise to dismiss an employee for such behaviour if the actual facts and circumstances of the case did not justify it.

Case Details: Phoenix House Ltd v Stockman UKEAT/0284/17 (No.2) 2019