Phoenix House Limited -v- Stockman has been kicking round the Employment Tribunal system ever since Ms Stockman was dismissed in 2013.  It has something for all the family – discrimination, some victimisation, a touch of whistleblowing and a light dusting of trust and confidence.  However, on its second trip to the Employment Appeal Tribunal at the start of this year, a new question was up for consideration – is it necessarily dismissible conduct to record covertly a meeting with your employer?

Stockman was not dismissed for that reason, but the question arose in connection with the calculation of her unfair dismissal compensation.  If it were conduct warranting dismissal, should there be some greater deduction from that money to reflect the probability that if she had not been dismissed when she was, she would have been sacked when Phoenix House discovered what she was doing?

There is little more likely to cause a nuclear winter in workplace relationships than the discovery that your colleague or employee has been covertly recording his exchanges with you.  That generates two separate questions – is the mere fact of the covert recording actionable misconduct, and even if it is not, how do you deal with the fall-out from those activities?

Is covert recording active misconduct or a breach of the employee’s obligations of trust and confidence?  The degree of distrust which it implies is very significant, potentially compounded if there is any suggestion of attempted entrapment, posing loaded questions to lure the unsuspecting manager into saying something stupid “on tape”.  You may have express rules against that sort of thing, or you may have issued a specific no when asked if it would be OK.  It may be the sort of meeting from which prompt and reliable minutes are known to be available (meaning that there is no legitimate need for a separate record) or it may be something in which the confidentiality of the proceedings is stressed.  The employee might have been asked if he is recording the meeting and expressly but falsely denied it.  He may have left a recording device to capture conversations taking place even when he was not there to be offended by them.  Such circumstances are likely to constitute misconduct, possibly even gross misconduct.

Alternatively, the employee might record a meeting covertly if he is trying to cover up the fact that he has a disability which impedes his ability to concentrate or take a decent note.  He could be using it to enable himself to obtain advice from a lawyer or union.  He might genuinely have run out of other ways to get his employer to believe him on something important, despite prior attempts.  If the recording is alleged to be made with the intention of capturing discrimination or other unlawful conduct which might otherwise not be believed, for example, retaliation could take the employer straight into victimisation or whistleblowing territory.

The EAT set off with what appears on its face to be an irrelevance – the question of how much easier it is now to record covertly through your mobile phone than it was when you had to conceal a Dictaphone in your trousers and engineer a break after 29 minutes so you could turn the tape over before it squeaked to a halt.  The EAT thought that when an employee had to go to so much trouble it would be straightforward to conclude that the recording had been made to “entrap or otherwise gain an unfair advantage”.  Compare that to recordings now made in the “work of a moment”, where somehow the motivation is not necessarily so sinister.  I am not sure that how easy the recording is to make has any connection with the culpability of it, but never mind.

The EAT declined to accept that covert recording is always a breach of trust and confidence.  That will particularly be the case if the recording does actually show behaviours which are objectively inappropriate, and still more so if before becoming aware of their capture for posterity, the employer has denied them. [One of my more professionally embarrassing moments as a young lawyer was staunchly batting away on instructions the remotest suggestion that my client had caused any distress to the claimant in a disciplinary meeting, only then to be presented with her covert recording of events.  Not pretty.]  If as employer you are caught doing something wrong by a covert recording, then regardless of the ethics of it, retaliation just looks really shabby.

Equally, however, the EAT did accept that such activities could (“will generally”) be misconduct in the right circumstances.  If you are going to give in to the very understandable temptation to dismiss, therefore, better to do so in cases where the moral high ground is firmly in your hands and the scope for allegations of cover-ups, victimisation, etc., is as low as you can make it.   The Tribunal in Stockman had dinged her compensation by 20% for this.  It was quite clear that the EAT thought that this was not enough, but once it has concluded that covert recording was not automatically a breach of trust and confidence by the employee, it felt itself unable to say that this level was an error of law, and so it stayed as it was.

So next, if you take the view as employer that despite your searing indignation there are mitigating circumstances enough that dismissal is inappropriate, how do you deal with the resulting damage to workplace relationships?  This is strictly a separate question from whether the covert recording is of itself misconduct, but it is integral to the question of what you can properly do about it.  Is it reasonable to expect your other staff to continue to work with somebody they know has recorded them covertly in the past, almost whether or not he has then used that recording for disciplinary or grievance purposes?  What level of trust could there then be between them, and why would those staff believe any reassurances from the employee that he was no longer doing it?  We offered some tips on dealing with this situation.

Suffice to say for present purposes that unless the recordings were made in connection with a discrimination or whistleblowing allegation, there could fairly readily be an argument that they constituted grounds for a loss of trust and confidence in the employee.  Compounded by resistance and resentment from other employees, you could potentially get to a fair dismissal for some other substantial reason even if there were not grounds for a termination purely for misconduct.

As a side-note, even though covert recoding by the employee is not automatically a breach of trust and confidence, the same is very unlikely to be true of such recordings made by the employer. None of the potentially mitigating circumstances the EAT identified in Stockman would usually be available to the business.