Covert recordings not always misconduct
An Employment Appeals Tribunal (EAT) has ruled that covertly recording a meeting in the course of a formal disciplinary or grievance process is not always misconduct and may be acceptable in specific cases.
The EAT upheld a ruling that Tatiana Stockman, who worked for the charity Phoenix House, was unfairly dismissed after a dispute between her and her manager, and in doing so clarified that the purpose a covert recording should also be considered in determining whether making such a recording is misconduct.
During the course of the initial Tribunal hearing it emerged that Stockman had made a covert recording of a meeting. Phoenix House therefore appealed the judgment arguing if they had been aware of the covert recording then Stockman would have been dismissed for gross misconduct. However the EAT upheld the ET’s ruling, saying the reasons a recording were made needed to be taken into account.
The EAT noted that there was a wide range of reasons that an employee might covertly record a meeting, from a highly manipulative employee seeking to entrap the employer to a confused and vulnerable employee seeking to keep a record or guard against misrepresentation. It also thought that circumstances could vary as between 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. The extent of an employee’s blameworthiness should therefore be considered in determining whether covert recording is misconduct.