Although it is good employment practice for an employee to ask their employer for permission to record a meeting, the Employment Appeal Tribunal (EAT) has held in Phoenix House Ltd and Anor v Stockman that it is not automatically misconduct to do so. Instead, tribunals have to assess the particular circumstances that apply in each case.
After a reorganisation of the finance department, Ms Stockman complained in a meeting with the HR director that the director of finance, Mr Lambis, was treating her differently and that the process had been biased against her. Unbeknown to the employer, she recorded the conversation.
After lodging a grievance containing two alleged protected disclosures about breaches of health and safety at work, she went off sick and refused to tell her employer when she might be well enough to return to work. At a disciplinary hearing (which was held in her absence) she was given a 12-month formal written warning which she appealed against. When she said she wanted to return to work, she was put on authorised leave until her grievance appeal was concluded. Ultimately it was rejected.
However, she remained off work pending a mediation meeting which proved unsuccessful. At this point, the employer asked Ms Stockman to come to a meeting to decide if the working relationship between her and Mr Lambis had broken down irretrievably. Ms Stockman said that she could put the grievance behind her and work with Mr Lambis. Her employer, however, was not convinced and dismissed her with immediate effect.
She claimed unfair dismissal, among other things.
The tribunal upheld her claim because the procedure adopted by the employer was unfair. As a result, Ms Stockman did not have an adequate opportunity to put her case or to challenge effectively the assertions that had been made against her. Fundamentally, the decision that there had been an irretrievable breakdown in the relationship was unreasonable given that Ms Stockman had pursued a single grievance which she was prepared to put behind her.
As for the covert recording, the employer was unaware of this at the time of the dismissal. The employer argued at an employment tribunal hearing to determine the remedy for her unfair dismissal claim that had they known about the recording they would have dismissed her for gross misconduct and that it was not just and equitable to make any award. The tribunal held that it was just and equitable to reduce the compensatory award by 10 per cent.
The employer appealed, arguing that the covert recording was a breach of the implied terms of trust and confidence because its nature was dishonest in that it was designed to obtain an advantage for the employee and place another at a disadvantage. Had they been aware of it at the time, they would have dismissed her for gross misconduct.
Dismissing the appeal, the EAT held that the tribunal had correctly applied the just and equitable test in terms of reducing the award.
As for the question as to whether the covert recording constituted a breach of the term of trust and confidence, the EAT held that tribunals are entitled to make an assessment of the particular circumstances in each case. In particular, they need to take into account the purpose of the recording; the extent of the employee’s blameworthiness; and whether the material recorded was confidential or not.
In general, however, the EAT made clear that it is good employment practice for an employee or employer to state their intention to record a meeting and it will generally amount to misconduct not to do so.
It therefore concluded that the tribunal did not have to find in this case that there was a breach of the implied term of trust and confidence. Instead it was entitled to make an assessment of the circumstances and to find that Ms Stockman had not recorded the meeting with the intention of entrapment. It was therefore correct to come to the conclusion that it had.