Duncan Milne

Covert recordings are topical at the moment. Boris Johnson was recorded with his girlfriend Carrie Symonds in their home under unpleasant circumstances. The debate that followed on Twitter was heated after Telegraph columnist Allison Pearson tweeted that the recording was harassment as it was politically motivated. The Secret Barrister stepped in to tell her it was not illegal and she was (his words, not mine) #lawyered. Covert recordings were also used against Donald Trump’s presidential election campaign in 2016 where he was recorded talking about how easy it was to pick up women with his fame.

What about the use of covert recordings in the workplace? Can they be used by employers or employees to score points in a disciplinary or tribunal situation? It depends.

Earlier this month, the Employment Appeal Tribunal in London considered this in Phoenix House Ltd v Stockman & Anor UKEAT/0284/17/ OO. The claimant was dismissed due to a breakdown in the working relationship with her employer Phoenix Futures, a housing association helping people with drug and alcohol problems. This employee originally won her case for unfair dismissal on the basis there was improper procedure and her employer acted unreasonably in forming the view that there had been a breakdown in the relationship. Her employer appealed.

Every employment contract in writing or not) includes a term of trust and confidence between employer and employee. It swings both ways; if either employer or employee does anything to destroy or seriously damage the relationship of trust and confidence without reasonable and proper cause, this can result in a fundamental breach of contract. The effect of a breach like this by an employer is a resignation by the employee and claim for constructive unfair dismissal provided they are eligible to make an unfair dismissal claim. A breach by the employee will generally be treated as gross misconduct and result in dismissal.

The claimant had, unbeknown to her employer, recorded a conversation she had with the chief executive when discussing a conversation with the finance director which had upset her. The recording had nothing to do with the reason for her dismissal and her employer didn’t know she had recorded the conversation until after her dismissal. Phoenix argued the compensation awarded to the claimant should be reduced because, if they had known about the recording, this would have amounted to gross misconduct due to a breakdown in trust and confidence and she would have been dismissed.

It is becoming increasingly common for employees to record covertly in the workplace. It can be used by: (1) a manipulative employee to entrap the employer doing something that will help the employee’s case; (2) a vulnerable employee to protect themselves against any risk of misrepresentation when faced with an accusation; or (3) a careful employee wishing to use the recording to take advice from an adviser or trade union.

In the Phoenix case, the tribunal decided a covert recording did not automatically mean the duty of trust and confidence had been undermined to the extent that the employer no longer has to keep the employee. The purpose of the recording and the extent of the employee’s blameworthiness is relevant depending where the employee falls in the above three categories. The implication seems to be that the vulnerable and careful employee will generally have cause to record meetings. If an employee has been told not to record, has lied about whether they are recording or whether recording constitutes gross misconduct in the disciplinary procedure is also relevant in establishing the blameworthiness of the employee.

The employee will also be in hot water depending on the confidentiality of the meeting. A disciplinary meeting, for example, would normally be recorded whereas a meeting to discuss highly confidential and sensitive business information would not. In the latter, covertly recording the meeting is less likely to be acceptable due to the expectation of confidentiality.

Ultimately, the claimant in Phoenix won her employer’s appeal and the appeal tribunal found that the employment tribunal had reached the correct decision.

It is good practice for an employee or employer to make their intention to record a conversation known. Not to do so will generally amount to gross misconduct depending on the purpose of the recording. Stepping back and taking a look at the practical effects of recording a conversation shows that recording should usually be avoided. It obviously avoids any legal complications but more importantly allows for a frank exchange of views. Employers should also look to make sure that covert recording constitutes an act of gross misconduct in their disciplinary procedure.

• Duncan Milne is a trainee solicitor at Blackadders. You can follow him on Twitter at @EmpLawyerDunc. This article first appeared in The Scotsman.