Context of covert recordings clarified

While covert recordings of workplace meetings are frowned upon by employment tribunals, they are generally admitted in evidence if relevant to the issues. 


A new ruling by the Employment Appeal Tribunal (EAT) in Phoenix House Ltd v Stockman UKEAT 0284/17 cautions that secret recordings are usually misconduct, except in the most pressing circumstances. 


Tatiana Stockman worked in the finance department of the Phoenix House drug and alcohol dependency charity. She complained about the unfairness of a restructuring process, and events following her complaint led to her dismissal. 


An employment tribunal found that Stockman had been unfairly dismissed and awarded her compensation. Phoenix House appealed against the amount of compensation, arguing it should have been reduced to reflect Stockman’s pre-dismissal conduct in making a recording of a meeting she had with HR. 


The EAT rejected the appeal and made some general comments about the use of covert recordings, which, it recognised, can easily be made these days. When faced with such cases, tribunals must consider all factors, including:


• the purpose of the recording;


• the extent of the employee’s blameworthiness (for example, had they been told not to record it); and


• what is recorded — for example is it a meeting that would normally be recorded, or is it a highly confidential business information meeting?

www.bailii.org/uk/cases/UKEAT/2019/0284_17_0507.html