Employee’s covert recording of meeting did not breach implied term of trust and confidence22/07/19
In Phoenix House Ltd v Stockman, the Employment Appeal Tribunal (EAT) has ruled that an employee was not in breach of the implied duty of trust and confidence when she secretly recorded a meeting with HR.
The Claimant complained of unfair treatment following a restructure of the Respondent’s finance department in which she worked. A meeting took place between two senior members of the finance team and a colleague who supported the Claimant to discuss her complaints. The Claimant interrupted this meeting demanding to know what was being said and refusing to leave. Following this meeting, the Claimant was called to a meeting with HR, at which she was told that she would be disciplined for her conduct. The Claimant covertly recorded this meeting.
Following a grievance lodged by the Claimant, her period of sickness absence and an unsuccessful mediation, the Claimant was summarily dismissed on the basis that her relationship with senior management had irretrievably broken down.
The Claimant brought a claim for unfair dismissal and during the Employment Tribunal (ET) proceedings, it became apparent that she had secretly recorded the HR meeting.
The Respondent argued that any compensation awarded to the Claimant should be reduced to nil to take into account her contributory fault, on the basis that in secretly recording the meeting she was in breach of the implied term of trust and confidence, The ET upheld her claim and reduced her compensation by 10 per cent to reflect her conduct.
Both parties appealed various aspects of the judgment to the EAT.
The EAT dismissed the appeal and found that the Claimant’s compensation had been correctly assessed.
In considering the impact of the Claimant’s conduct in covertly recording the meeting, the EAT noted that although the covert recording of a meeting may amount to a breach of trust and confidence, this will not necessarily be the case. It was the view of the EAT that much will depend on the facts of each case.
The covert recording of meetings has become more prevalent now that it is relatively easy to make a recording via a mobile telephone. Whilst the EAT recognised that recording a meeting covertly might well be the cause for serious concern for an employer, the EAT did comment that in some cases it might be a legitimate approach in order to enable the employee to keep a record, to protect the employee from any risk of being misrepresented when faced with an accusation or an investigation, or to enable the employee to obtain advice from a union or elsewhere.
The EAT made clear that the purpose of the recording will be relevant, as will the blameworthiness of the employee and the nature of what is recorded. The employer’s attitude to such conduct will also be relevant. In particular, was the employee expressly told that recording the meeting was not permitted, or was covert recording expressly listed as an act of gross misconduct in the employer’s disciplinary policy?
What to take away
This case serves a reminder that, whilst recording a meeting covertly can be an act of misconduct, this will not always be the case and each case will turn on its own facts. Employers who are concerned that employees may seek to record meetings should ensure that employees are informed at the outset of the meeting that they should not make a recording of it – this will make it easier for the employer subsequently to treat this as an act of misconduct. Similarly, employers may wish to consider expressly including the covert recording of meetings as an example of misconduct or gross misconduct in a disciplinary policy in order to better protect their position.
For further information on how this issue might affect your organisation, please contact Paul McFarlane, Alistair Kernohan or Chloe Edwards.