Mon 05 Aug 2019

Covert recording of disciplinary hearing is misconduct

Covert recording of a disciplinary hearing will  usually amount to misconduct but it may not stop the recordings being used as evidence before a tribunal.

In 2015 an employment tribunal upheld a claim of unfair dismissal, whistleblowing detriment and victimisation made by Tatiana Stockman against her employer Phoenix House Limited.  Following an appeal to the EAT and a further tribunal hearing the parties found themselves back in front of the EAT in January 2019.  One of the issues for the EAT related to the amount of compensation  awarded by the tribunal and the fact it had been reduced by 30%. 

It had emerged during the tribunal  proceedings that Ms. Stockman had made a covert recording of a meeting. At the remedy hearing, Phoenix had argued that had they been aware of the covert recording at the time it was made they would have dismissed Ms. Stockman for gross misconduct and accordingly it was not just and equitable for any award of compensation to be made.  The covert recording was, in the submission of Phoenix, a breach of trust and confidence. 

The tribunal found that Ms. Stockman did not make the recording for the purpose of entrapment, she appeared flustered when the recording was made, she didn't use it during the internal proceedings with Phoenix and she had supplied a transcript of it as part of the tribunal's disclosure process. The tribunal also noted that the making of covert recordings was not specifically referred to in the disciplinary policy as amounting to gross misconduct and the policy had not been amended by the time of the remedy hearing.  Prior to considering the covert recording, the tribunal had decided to reduce the compensation by 20% for other reasons.  They reduced it by a further 10% in light of this issue, finding there was only a low percentage chance that Phoenix would have fairly dismissed her had they known of the recording prior to her actual dismissal.  

In the appeal judgement  the EAT rejected Phoenix's  arguments.  A tribunal is not bound to find that a covert recording undermines trust and confidence and it is entitled to make an assessment of the circumstances.  The purpose of the recording, the employee's blameworthiness and what is recorded will all be relevant factors, as will the attitude of the employer to such conduct.  Recording a meeting that the employee is not in attendance at where confidential matters may be discussed will be a different matter from recording a meeting the employee attends where minutes are taken in any event. 

However, for employers looking for support for arguments against covert recordings, the EAT went on to say that it is good employment practice for an employee (or employer) to say if there is any intention to record a meeting, save in the most pressing of circumstances.  So while it may not amount to a breach of the implied term of trust and confidence not to do so, it will, according to the EAT, generally amount to misconduct. 

That said, case law flowing from the EAT shows that covert recordings are admissible as evidence.  Tribunals have wide discretion to determine admissibility of evidence and if it is relevant to an issue between the parties it is likely it will be allowed.  In 2006 in Chairman and Governors of Amwell View School v Dogherty a covert recording or a disciplinary hearing was allowed, albeit the recording of the private deliberations of a disciplinary panel were not.  In 2012, while indicating that the practice of covert recording was distasteful the EAT in Vaughan v London Borough of Lewisham and others held that does not render it inadmissible.  Subsequently in Punjab National Bank (Internationa) Ltd and others v Gosain the EAT upheld an employment tribunal's decision that recordings of not only the relevant disciplinary and grievance hearings but also the private discussions of the panel members were admissible.   

Although there is also case law where employees were not allowed to rely on covert recordings, employers should be aware that this is a real risk.  While employers might want to consider both listing covert recordings of meetings as an act of gross misconduct and including an express prohibition of the practice in the disciplinary policy, this will not prevent the recording being allowed as evidence in a hearing - that will be a matter for the discretion of the tribunal in the particular circumstances of the case.

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