Whether covert recordings amount to misconduct or not will always depend on the circumstances, as illustrated in this recent legal case.
Mrs Stockman worked as a Financial Accountant. After she complained to a colleague that a restructuring process had been biased against her, her line managers met with her colleague. Mrs Stockman interrupted their meeting to find out what was being discussed, and refused to leave when asked. Following this, she met with the Head of HR, where she was told she would be disciplined for that conduct. She secretly recorded the meeting.
The tribunals found that whilst it will generally amount to misconduct not to inform the employer that a recording is being made, covert recording could not necessarily be said to undermine the relationship of mutual trust and confidence between employer and employee. This will depend on:
- The purpose of the recording
Is the employee seeking to entrap the employer, or are they vulnerable and seeking to guard themselves against misrepresentation? - The blameworthiness of the employee
Has the employee specifically been told not to make a recording, or are they a distressed employee who has not thought about the criminality of making such a recording? - The contents of the recording
Can the contents be kept and shared in any event, or do they relate to confidential or personal information? - The attitude of the employer to such conduct
Is covert recording given as an example of gross misconduct in the employer’s disciplinary policy?
Birmingham employers who want to try and ensure that recording without consent is prohibited should include the covert recording of meetings to the list of examples of gross misconduct in their disciplinary policy. It is also sensible for employers to make clear at the start of disciplinary or grievance hearings that recordings of the meeting are prohibited.
Kathy Halliday is a Partner in the Employment Law team at award-winning law firm VWV.
For the full details of the case, please visit vwv.co.uk.
