Can you discipline an employee for making a covert recording?
The simple answer is yes! In the recent case of Phoenix House Limited v Stockman heard by the Employment Appeal Tribunal, it was confirmed that it is best practice for both employers and employees to be open and honest about their intentions to record a meeting, except in the most pressing of circumstances. Whilst the covert recording of a meeting by an employee would not automatically warrant a summary dismissal, it is permissible for an employer to discipline an employee for making a covert recording.
When considering such conduct, an employer must, as in any conduct case, follow a fair process and consider all of the relevant facts and circumstances of that particular case before making a decision about the most appropriate sanction. So what should the employer consider?
- The purpose of the recording
Did the employee do this to gain a dishonest advantage or simply to keep a record of the meeting and protect themselves from misrepresentation?
- Is the employee to blame
Was the employee specifically told not to record the meeting but did it anyway and then lied about it or did they not think about what they were doing and whether they should have sought permission?
- What type of meeting was recorded
Was it a meeting that would usually be minuted or the employee’s own grievance or disciplinary hearing or was it a confidential meeting where sensitive or privileged information was being discussed?
Ultimately, the result of each case would be dependent on its own facts and any mitigating circumstances should be taken into consideration.
Covert recordings should also be considered when reviewing internal policies and procedures. Whilst most employers will not reference an exhaustive list of types of misconduct or gross misconduct within their disciplinary policy, it would not be unreasonable to reference covert recordings and to make it clear to employees that they are not an accepted practice therefore, could potentially result in their summary dismissal.
Whilst employers can discipline employees for making covert recordings, employees can still use their recordings against the employer at an Employment Tribunal. Providing a covert recording is relevant to the issues to be determined by the Tribunal, it will be disclosable and admissible during Tribunal proceedings.