What’s bugging you?
Ian Machray explores whether an employee’s secret recording of a meeting is likely to amount to misconduct.
Employers should be mindful that covert recordings of meetings by employees can be considered admissible evidence in court if the tribunal considers them to be relevant and such recordings would not automatically be deemed to be an act of misconduct.
In a recent case, the employee had secretly recorded a meeting between herself and the HR director in which they discussed allegations that the employee had interrupted a private meeting and failed to leave. Following disciplinary action, the employer dismissed the employee. The employer was not aware of the recording at the time of dismissal and it did not form the basis of the dismissal. When the employer became aware of the recording at the hearing, they asserted that they would have immediately dismissed the employee for gross misconduct had they known about the recording and therefore any compensation awarded should be reduced.
The Employment Appeal Tribunal (EAT) held that the employee had been unfairly dismissed. It also confirmed that the secret recording of a meeting would not automatically breach trust and confidence between an employer and employer and therefore any compensation awarded would not automatically be reduced. The outcome will depend upon the specific circumstances, in particular:
- the nature of the meeting – did it solely concern the employee in question or did it concern highly confidential information about the business;
- the reason for the recording – was it obtained with honest intentions such as having a record of the meeting to protect against misrepresentation or to enable the employee to obtain advice or was it obtained for the purpose of entrapment or to gain a dishonest advantage;
- whether covert recordings are expressly prohibited in the employer’s disciplinary policy and defined as an act of gross misconduct; and
- the likelihood of the employer dismissing the employee had it known about the recording.
To help protect themselves, employers should:
- have a policy which prohibits the recording of meetings and hearings without the consent of the employer and remind employees of this policy at disciplinary meetings and hearings and other confidential meetings;
- be mindful that the employee could be recording meetings and be careful of what is said at any meeting; and
- raise any suspicions with the employee if they believe that a meeting is being secretly recorded. Employers can refuse to continue meetings until they are sure that it is not being covertly recorded.