Privacy in the workplace-Part 1

Covert Recordings of Meetings

Developments in technology mean that it’s now easier than ever to record our daily lives. As a result, covert recordings of workplace meetings by employees have become increasingly common.

But if an employee secretly records a meeting at work (such as a grievance or disciplinary hearing), then is that an act of misconduct by the employee and, if so, how serious is that misconduct?

This issue was recently considered by the Employment Appeal Tribunal in the case of Phoenix House Ltd v Stockman. Ms Stockman was employed by Phoenix House as an accountant and she secretly recorded a meeting which the company’s head of HR held with her during a restructuring process. Ms Stockman raised a grievance and was subsequently dismissed, but at this point the company did not know that she had recorded the earlier meeting with HR.

Ms Stockman brought an unfair dismissal claim in the Employment Tribunal and during the conduct of that claim she produced the covert recording of the meeting as evidence.

Both the Employment Tribunal and subsequently the Employment Appeal Tribunal had to consider, as part of the case, whether by secretly recording her meeting with the head of HR, Ms Stockman had committed an act of misconduct and, if so, how serious was it.

The Employment Appeal Tribunal said that whether covert recording by an employee undermines the trust and confidence which has to exist between employer and employee (and therefore amounts to serious misconduct) will depend on factors such as:

• the purpose of the recording – whether the employee was protecting themselves from being misrepresented or whether they were trying to entrap the employer

• the subject matter of the recording – if the recording contains confidential information about another person, then this will be more difficult for the employee to defend

• the blameworthiness of the employee’s behaviour, and

• evidence of the employer’s general approach to that type of conduct – did the employer have a clear policy prohibiting secret recordings being made?

In this case, there was no internal policy which expressly prohibited the act of making covert recordings. Also, Ms Stockman had not recorded the meeting in order to entrap her employer and the recording did not contain any confidential information about third parties - it was only about her own employment.

The Stockman case illustrates that dismissing an employee on the basis that they have covertly recorded a conversation may be a risky decision, particularly if there’s no clear policy in place stating that covert recording amounts to gross misconduct. As an employer, you may therefore want to consider updating your disciplinary policy, so that the position on this issue is clear.

What about if an employer covertly records a meeting?

The situation is different in that case.

Employers are bound by the requirements of The Data Protection Act 2018 and the General Data Protection Regulations and will need to comply with the requirements to:

• inform anyone they record about the specific purpose of the recording, and
• get specific consent, such as a signed form.

In order to be valid, consent must be given freely, given for every instance of recording and cannot be presumed based on previous consent.

Where an employer fails to obtain valid consent, this may also amount to a breach of the employee’s right to privacy, which is protected by Article 8 of the European Convention on Human Rights. Such an act would be likely to be grounds for the employee to resign and bring a claim for constructive dismissal.

The Information Commissioner's Employment Practices Data Protection Code states that it would be rare for covert recording of employees in meetings to be justified and that it should only be done in exceptional circumstances - for example, as part of a specific investigation into suspected criminal activity.

As a result, employers should always seek specific legal advice if they believe there is a need to covertly record an employee.

In next month’s edition, we will move on to look at the legal issues around surveillance of employees in the work place.