When does making a covert recording amount to misconduct?
Elizabeth Judson, Partner and Employment Law Specialist / August 2019
In the Employment Appeal Tribunal (EAT) case of Phoenix House v Stockman, the Claimant had disclosed a covert recording made during her employment as evidence in her unfair dismissal claim. The employer believed that her compensation should be reduced to reflect her conduct in making a covert recording without justification.
The EAT rejected the argument and gave the following observations:
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- It is good practice for either an employer or an employee to say if there is an intention to record a meeting and will generally amount to misconduct not to do so, except in extreme circumstances.
- The purpose for making the covert recording is relevant.
- The nature of what is recorded is relevant and can vary from a meeting where a record is intended to be kept to recording highly sensitive or confidential information about a business or a third party.
- Whether the employee was told not to record the meeting is relevant. On this point, the EAT commented that employers rarely list covert recording as an example of gross misconduct. It would therefore be advisable for employers to do so.