In its judgment in the unfair dismissal case of Phoenix House vs. Stockman, the EAT found that employers and employees should always make known their intentions to record meetings, as this might otherwise amount to misconduct. However, exceptions to the rule abound.
In an unfair dismissal case, a covert recording taken by Stockman (the dismissed employee) was revealed during proceedings. Phoenix House appealed claiming that had it known of this recording, it would have dismissed Stockman on the basis of gross misconduct, but the EAT claimed that this was impossible as covert recording was not catered for in its disciplinary policy.
While the rule is that cover recordings are generally unacceptable, the EAT also found that they may be admissible in a hearing against employers where one’s intentions where not manipulative, but where a vulnerable person wished “to keep a record or guard against misrepresentation”. Considerations must also include the “employee’s blameworthiness” (the intent and assessment of the consequences) and the content of the recording (issues generally pertaining to confidentiality).
The EAT concluded that Stockman’s intent was not one of entrapment and that no confidential information was revealed during the meeting and that therefore, the implied principles of trust and confidence in the employment relationship had not been breached.
Judges said that covert recording issues were “still relatively rare” in cases of gross misconduct, but this judgment may serve as a good practice message to employers to update their disciplinary procedures and outline that the intent to record meetings must be made clear at the outset, and failure to do so would “amount to misconduct”.