Covert recordings gross misconduct?

Phoenix House Limited v Mrs Tatiana Stockman (EAT)

The EAT has confirmed that whilst the covert recording of HR meetings by employees will generally constitute misconduct, it does not necessarily meet the threshold of gross misconduct justifying summary dismissal. The severity of such misconduct will depend on all the circumstances, including the employee's motive, the subject matter of any recording and the employer's communicated position (including through policy documentation) on covert recording.

In this case, the Claimant covertly recorded a meeting with HR at which she was told that she would be disciplined for interrupting and refusing to leave a meeting between her managers, who had been discussing a complaint she had previously made. After her submission of a formal grievance led to an unsuccessful mediation, the Company considered that the relationship between the Claimant and her managers had irretrievably broken down and dismissed her without notice. Her claim for unfair dismissal was upheld by the Employment Tribunal and EAT.

During the Employment Tribunal proceedings, it emerged that the Claimant had covertly recorded the HR meeting and the judge reduced her compensatory award by 10% to reflect this conduct. Her employer appealed on the basis that, had it known about the recording, it would have dismissed the Claimant for gross misconduct and that her compensation should be reduced to nil. The EAT was, however, satisfied that the 10% reduction was reasonable on the basis that the conduct did not constitute gross misconduct and the Employment Tribunal had legitimately considered all the facts before reducing the compensation.

The decision offers a number of helpful lessons for employers. In particular, it states that whilst covert recordings will generally constitute misconduct, they will not necessarily amount to gross misconduct justifying summary dismissal. This will depend on all the facts, including the motive for any recording, the sensitivity of the relevant information and the extent to which an employer has communicated a clear policy on this topic. Employers would therefore be well advised to review disciplinary processes to ensure that covert recording is expressly referenced as an example of potential gross misconduct and that this is addressed at the start of any meetings.