Audio Recording in the Workplace
The recent decision in Phoenix House Limited v Stockman demonstrates the considerations of a Tribunal when considering covert audio recording in the workplace.
The Employment Appeal Tribunal’s (EAT) recent decision in Phoenix House Limited v Stockman demonstrates the considerations of a Tribunal when considering covert audio recording in the workplace’ meeting.
In this case the Claimant brought a claim against the Respondent company for unfair dismissal, victimisation and detriment for whistleblowing. The Tribunal upheld the Claimant’s claim for unfair dismissal.
The Respondent appealed the decision on a number of grounds, one of which being how a reduction was applied to the award made to the Claimant. The Respondent argued that had it known about the recording it would have dismissed the Claimant for gross misconduct and therefore the compensation awarded to the Claimant should be reduced accordingly.
The EAT considered the Respondent’s policies on recordings as well as the purpose for which the recording was made.
The EAT distinguished between a situation where a recording was taking for the purposes of entrapment and a situation where the employee simply wanted an accurate record of what had been said. In the latter, the fact that the recording was taken covertly was less important than where it was taken with the purpose of catching the Respondent out and using it against them.
During the internal hearings, the Claimant had not asked any questions which were designed to gain a favourable response in order to bolster her claim. She also did not use the recording as part of the internal process and only made a transcript of it because of the obligation of disclosure as part of the Tribunal process.
In relation to the Respondent’s policies, the EAT found that the relevant policies did not specifically prohibit an employee from covertly recording an internal meeting and its disciplinary policy did not list covertly recording as an act of gross misconduct.
The EAT also highlighted the importance of confidentiality and noted that a situation where an employee covertly recorded a meeting in which confidential information was discussed (e.g. about clients or patients) would be looked upon unfavourably.
The above facts led the EAT to conclude that no further reduction to the compensation awarded to the Claimant should be applied for covertly recording the meeting.
There are two ways in which employers can deal with this. They can either choose to allow employees to record meetings and actively encourage it. This will to some extent deter an employee from covertly recording a meeting. On the other hand, if an employer does not want to allow employees to record meetings then they should ensure that their policies state this and that there are specific sanctions for covertly recording meetings. This will then enable the employer to potentially argue for a reduction to the compensation that the Claimant is awarded.
Please contact our team if you would like further and more specific advice on these issues.