Can an employee record a meeting without your consent?
When carrying out any form of surveillance, from checking emails to using CCTV cameras – as well as hitting the record button on a phone or other device – the general underpinning rule is that you must disclose what you are doing and why.
As an employer, you should have a policy stating what forms of surveillance and/or monitoring you carry out, the type of personal data you might collect, and your reasons for doing it.
An employer who records a meeting without an employee’s knowledge or consent is likely to be heavily criticised by an Employment Tribunal – and may face a claim for breach of privacy.
An employee should also disclose whether they are recording a meeting or conversation, but they often don’t – and this has called into question whether the employer has any rights arising from such a situation.
Tribunal’s findings on covert recording
Case law can help determine this. In Stockman v Phoenix House Limited, an Employment Appeal Tribunal looked at this question in detail.
Mrs Stockman was employed by Phoenix House until she was dismissed on the basis of an irretrievable breakdown in the relationship between her and her employer.
The path to her dismissal was complicated. She had a written warning on file for storming into a meeting and refusing to leave. And, she submitted a grievance alleging harassment and a whistleblowing report alleging health and safety breaches.
Her allegations were dealt with and were not upheld. She appealed the written warning and the outcome of her grievance, and her appeals were unsuccessful.
A mediation then took place to determine whether the relationship between Mrs Stockman and her employer could be retrieved.
Mrs Stockman said that she thought it could as she was to move to a less stressful role and felt that she could conduct a professional working relationship with the manager named in her grievance.
Phoenix House disagreed and Mrs Stockman was dismissed on the basis of an irretrievable breakdown in the relationship.
Mrs Stockman brought a claim for unfair dismissal and, in doing so, disclosed a recording that she had taken of a meeting at Phoenix House without informing the HR manager involved or seeking their consent to the recording.
Her employer responded that if they had been aware of the recording at the time of Mrs Stockman’s dismissal, they would have dismissed her for gross misconduct and/or relied on the recording as further evidence of the breakdown of the relationship.
Mrs Stockman’s claim for unfair dismissal was successful and she was awarded over £20,000 in compensation. However, her compensation was reduced by 30% on the basis that she had recorded a meeting without her employer’s knowledge or consent.
The EAT considered Mrs Stockman’s actions and concluded that there was no evidence that she had made the recording with the intention of entrapping someone.
She had not asked leading questions or attempted to elicit information on the recording. It appeared more likely that she had made the recording as she was feeling under stress, and was unsure of whether she would need evidence of what was being said to her – for example, if she needed to take advice after the event.
The EAT concluded that it was rare to see covert recording listed as an act of gross misconduct in an employer’s disciplinary procedure, although it acknowledged that that may change over time.
The EAT also concluded that the fact of an employee covertly recording a meeting did not necessarily undermine the trust and confidence between employer and employee to the extent that it warranted dismissal of the employee, although the employee’s intentions in making the recording would be highly relevant to that decision.
What does this mean for employers?
You may want to include, in your disciplinary procedure, a note to say that an employee should not record meetings or conversations without the knowledge and consent of the other persons involved, as it undermines trust and may be treated as an act of misconduct.
You might also include a similar form of wording in letters inviting employees to attend formal meetings.
If you then become aware that an employee has recorded a meeting or conversation without consent you can decide whether their actions are sufficiently serious to warrant disciplinary action.
For help with any tricky workplace situation, contact us.