Making covert recording is normally misconduct, but severity will vary

Last week’s decision from the Employment Appeal Tribunal gives some useful guidance about the rights and wrongs of recording workplace meetings.

The EAT said that it was good practice to say if there is any intention to record a meeting “save in the most pressing of circumstances”. An employee’s failure to do this would generally amount to misconduct, but not necessarily gross misconduct.

When assessing the impact of a covert recording on the employment relationship, the EAT has explained that an employment tribunal is entitled to make an assessment of the circumstances, including the following:

• The purpose of the recording: the purpose may vary widely from the “highly manipulative employee seeking to entrap the employer” to the “confused and vulnerable employee seeking to keep a record or guard against misrepresentation”
• The employee’s blameworthiness: has the employee been told that a recording must not be kept, or lied about making a recording?
• What is recorded: is it a meeting of which a record would be kept in any event, or a meeting where highly confidential material is discussed?
• Employer’s attitude: for example, is making a covert recording included as an example of gross misconduct in the disciplinary procedure?

In this case there was no evidence that the claimant had sought to obtain an unfair advantage from making the recording. She was flustered at the time and was not even sure that her device would record. She made no use of the recording in the course of the employer’s internal procedures. In fact, when the recording was eventually disclosed in the course of the tribunal proceedings, the contents were damaging rather than helpful to her case. 

In the light of all these circumstances the EAT did not interfere with the ET’s decision to make a relatively modest reduction in the claimant’s basic and compensatory award. It had already decided to make a 20% deduction for other reasons which were not the subject of the appeal. It decided to increase this deduction by 10% to 30% because, had the employer known about the covert recording at the time of her dismissal, it might “fairly have considered this to be a misconduct matter which then fairly led to dismissal”.

In this appeal there was no discussion about whether a transcript of the recording should have been admitted in evidence at the ET. In most routine cases an employment tribunal will be prepared to allow the content to be given in evidence, normally by means of a verbatim transcript, even it has been made secretly. But in some cases an employer may wish to challenge its admissibility, either because the information recorded is not relevant to the issues in the case, or because it contains confidential material which it would be damaging to reveal in a public hearing. The mere fact that the recording has been made secretly is not normally a reason for refusing to admit it in evidence, though there may well be other adverse consequences for the claimant, as we have seen in this case.