With more and more sophisticated technology available at a relatively low cost, it is becoming easier to make covert recordings, including in the workplace. We are often asked whether an employee or indeed a manager can make a covert recording at work. The short answer is ‘no’ – it is likely to be misconduct.
Covert recordings may be considered in disciplinary procedures to be misconduct but in the absence of this being specifically set out, a recording made without the other party’s knowledge or consent is likely to be misconduct except in the most pressing of circumstances. This has recently been considered by the Employment Appeal Tribunal in Phoenix House v Stockman. In this case, the Claimant brought a successful claim for unfair dismissal. During the course of her claim, she admitted making a covert recording during her employment. Her former employer argued that the compensation which would otherwise have been awarded to her should be refused to reflect her pre dismissal (mis)conduct.
There are many situation in which covert recordings could be misconduct and few ‘pressing’ circumstances in which they may be justified. The purpose for making a covert recording may vary from attempting entrapment to guarding against misrepresentation. The nature of what is recorded can also be relevant, varying from a meeting where a record is normally kept, to highly confidential or sensitive information relating to the business or other people. An employee might have been specifically told not to record a meeting, or might have recorded it without giving thought to whether they were really permitted to do so.
It is good employment practice for an employee or employer to say if there is any intention to record a meeting, and it is generally misconduct not to do so, except in the most pressing of circumstances. Interestingly, it became apparent in this case that many employers do not list covert recording as gross misconduct.
For advice on covert recording, employment contracts and procedures please contact Fiona Hewitt, Senior Associate and Head of Employment and Commercial Disputes, by calling 01908 304560 or email firstname.lastname@example.org