The agreed recording of meetings between an employee and HR/management has become increasingly common due the technological ease and relative inexpensiveness of doing so. However, it is no longer difficult or uncommon for employees to record meetings without saying so, as most people carry a mobile phone capable of making a recording. Recordings might take place for a variety of reasons: to keep a record, to protect the employee from a risk of misrepresentation, or to enable an employee to obtain subsequent legal advice. Are these recordings admissible in court, and are they a disciplinary offence?
The legal position generally is that when an employee secretly records an internal meeting or hearing with the employer, the recording of any parts of the meeting where the employee was present may be admissible before an employment tribunal if the tribunal believes it is relevant. In determining admissibility, factors taken into consideration will be the purpose of the recording, the extent of the employee’s blameworthiness, the subject matter recorded, and evidence of the employer’s attitude to such conduct. Both sides should consider the desirability of a recording and how it should be done. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. Where meetings are long, a written summary could be more valuable.
It remains good practice for parties to communicate an intention to record a meeting and the act of covertly recording a meeting may amount to “misconduct”, depending on the employer’s disciplinary rules and procedures. It is relatively rare for covert recording to appear on a list of examples in a staff handbook of conduct which represents “gross misconduct”. The recent case of Phoenix House Ltd v Stockman UKEAT/0284/17 (No.2) determined that the covert recording of a meeting did not necessarily undermine the trust and confidence between employer and employee and so it would not normally be categorized as “gross misconduct” and so punishable by summary dismissal. Instead, it is likely to fall into the category of “misconduct” and so punishable by a lesser sanction.
Employees should be aware of this legal development due to the increasing prevalence of covert recordings. If a covert recording is found to have been made, the employee will be open to disciplinary sanctions such as a first or final written warning, dependent on the context of the conduct. Employers should take note of the recent caselaw as it shows that it is not open to it to unilaterally designate such conduct as “gross misconduct”, even if the staff handbook were to deem it to be so. Additionally, staff handbooks should be updated to include this modern technological development. The handbook should expressly provide that covert recording will be deemed to be “misconduct”, which should have the effect of drawing such conduct and sanctions to the attention of employees, and so hopefully reduce its incidence.
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