Can making a covert recording amount to gross misconduct?
22nd July, 2019
In Phoenix House Ltd v Stockman, the Employment Appeal Tribunal (EAT) considered whether making a covert recording at work was gross misconduct.
The Claimant was employed as a Financial Accountant at Phoenix House (the Respondent). The Claimant reported to the Head of Finance, Mr Betha who reported in turn to the Finance Director, Mr Lambis.
Following a restructure in 2013, the Claimant’s post was removed and she was appointed as Payroll Officer. The Claimant felt that Mr Lambis had treated her differently and that the restructuring process was biased against her. A colleague agreed with her view. The Claimant complained to Mr Betha. Mr Lambis, Mr Betha and the Claimant’s colleague met to discuss the issue. The Claimant walked into this meeting, forcefully demanded that Mr Lambis tell her what the conversation was about and refused to leave when asked.
The Claimant had a meeting with HR later that day which she covertly recorded – (although this only became apparent during her subsequent tribunal claim) and was told that she would face disciplinary action for interrupting the meeting and refusing to leave. The Claimant later raised a grievance, said to contain a protected disclosure, and complained that she had been harassed.
The grievance and disciplinary were dealt with concurrently: the Claimant received a 12-month formal written warning and, following further investigation, her grievance was rejected. Following an unsuccessful mediation, the Claimant was invited to a further meeting with HR. The Claimant stated that she could put all the issues behind her and could continue working with Mr Lambis. HR considered that the relationship had broken down irretrievably and dismissed the Claimant with immediate effect.
The Claimant issued for proceedings alleging unfair dismissal, automatic unfair dismissal for whistleblowing, whistleblowing detriment, victimisation and harassment on the grounds of race. An Employment Tribunal (ET) rejected the automatic unfair dismissal, victimisation and race discrimination claim but found that the Claimant’s dismissal was unfair.
In relation to the covert recording, the Respondent argued that had it known about the recording, it would have dismissed the Claimant for gross misconduct and that her compensation should be reduced as a result.
The ET found that the Claimant did not make the recording for the purposes of entrapment, was flustered at the time and uncertain if the device would actually record. The ET also held that the making of a covert recording was not specifically set out in the Respondent’s disciplinary process as an act of gross misconduct. The ET reduced he Claimant’s compensatory award by 10% to reflect her conduct.
The Respondent appealed on a number of grounds, which included the ET’s approach to the covert recording of the meeting and the findings of whistleblowing detriment and victimisation. The Claimant cross-appealed in relation to the ET’s refusal to order her reinstatement or re-engagement.
Employment Appeal Tribunal
The EAT rejected the Respondent’s appeal in respect of the whistleblowing detriment and victimisation complaints which were remitted to the ET and upheld the decision that the dismissal was unfair. The EAT dismissed the Claimant’s appeal that the ET should have ordered reinstatement or re-engagement.
The EAT stated that the purposes of the recording will be relevant – this may vary from a highly manipulative employee seeking to entrap their employer to a confused and vulnerable employee seeking to keep a record or guard against misrepresentation. It also considered that it is no longer difficult for employees to record meetings given that most people carry a mobile phone capable of making a recording.
In addition the employee’s blameworthiness may also be relevant and the EAT distinguished between an employee who had been specifically told that a recording must not be made or lied about making one, compared to an inexperienced or distressed employee who had scarcely thought about the blameworthiness of making such a recording. The EAT also commented that it was rare for covert recordings to appear on a list of instances of gross misconduct.
The EAT held that the ET was entitled to make an assessment of the findings, considering that the Claimant had not recorded the meeting with the intention of entrapment and recorded a single meeting concerned with her own position, rather than the confidential information of the business or other individuals.
This case is useful guidance for employers in relation to covert recordings made by employees and the circumstances in which such a recording could amount to gross misconduct.
If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.