A recent case demonstrates why employees and employers should avoid secretly recording meetings or conversations at work
Very helpful guidance was recently issued by the Employment Appeal Tribunal concerning the case of Phoenix House Limited v Stockman.
Mrs Stockman was employed by Phoenix House Limited and worked in the finance department. Following her dismissal she brought various claims to the Employment Tribunal, including unfair dismissal which was successful. By way of remedy, Mrs Stockman sought re-instatement and compensation.
The Employment Tribunal declined to order re-instatement and, although it made an award of compensation, it deducted 30% from this as it transpired that during the course of the internal proceedings prior to the tribunal, Mrs Stockman had covertly recorded a meeting with her employer.
As a result of this coming to light, the employer appealed against the finding. The employer argued that had they known about the covert recording, they would have dismissed Mrs Stockman fairly for gross misconduct and therefore the Employment Tribunal should have awarded her no compensation.
The Employment Tribunal concluded that Mrs Stockman didn’t make the recording for the purposes of entrapment. She created a transcript of the conversation for the purposes of the tribunal hearing only.
However, the tribunal agreed that had the employer known about the recording, it was reasonable that there was a chance it would have been a misconduct issue that could have resulted in Mrs Stockman’s fair dismissal. Therefore, both her basic and compensatory awards were reduced to reflect that chance.
The Employment Appeal Tribunal agreed with the Employment Tribunal and also concluded that as a matter of good employment practice, an employer or employee should say if there is any intention to record a meeting apart from in the most pressing circumstances; and it will generally amount to misconduct not to do so.
This practice will allow both sides to consider whether it is desirable to record a meeting and if so how. This is sound advice for our members who may contemplate taking this type of action.
Joanne Galbraith-Marten
RCN Head of Legal (Employment)
