Is it misconduct for an employee to make a covert recording at work?
Yes, except in the most pressing of circumstances, held the EAT in Phoenix House v Stockman.
The Claimant disclosed, during her successful unfair dismissal claim, a covert recording she had made during employment. The employer contended that her compensation for unfair dismissal should be reduced on ‘just and equitable’ grounds and under the Polkey principle, to reflect her pre-dismissal conduct in making a covert recording, as doing so without pressing justification was misconduct.
The EAT rejected the Respondent’s attack on the tribunal’s approach to reductions; the tribunal was entitled to come to its conclusions on the facts and it did not err in law.
The EAT’s reasons contain observations on the varied circumstances in which covert recordings might be misconduct. It is good employment practice for an employee or employer to say if there is any intention to record a meeting, and it is generally misconduct not to do so, except in the most pressing of circumstances.
The purpose for making a covert recording may vary from attempting entrapment to guarding against misrepresentation. The nature of what is recorded can also be relevant, varying from a meeting where a record is normally kept, to highly confidential or sensitive information relating to the business or other people.
An employee might have been told not to record a meeting, or might have recorded it without giving thought to the blameworthiness of doing so. Practitioners may note the EAT’s observation that employers rarely list covert recording as an example of gross misconduct in disciplinary procedures.