In the recently decided case of Phoenix House Limited v Stockman [2019], it was held that an employee making a covert recording at work may be guilty of misconduct.
Phoenix House is a charity which provides support to people with addiction problems. Ms Stockman, a Russian national who was originally employed as an Accountant, complained of unfair treatment during a restructuring process following which she was eventually placed into an alternative post as payroll officer. During her meeting to discuss her complaint which was chaired by the Head of HR, she made a covert recording of the discussions had.
The Company was not made aware of the recording until such time as the fact was disclosed during her successful unfair dismissal claim. On the basis of the disclosure, the Company successfully appealed against the award of the compensation arguing that it should have been reduced on the basis that prior to her dismissal, she had committed an act of misconduct in making the recording.
Ms Stockman appealed the decision to reduce her compensation but the EAT upheld the decision finding that the tribunal had been correct to reduce the compensation due to her. The EAT found that Ms Stockman’s act of making a covert recording was sufficiently serious to have undermined the mutual relationship of trust and confidence to the extent that the employer would potentially have been entitled to terminate her employment.
This case is interesting and when delivering its judgment, the EAT stated that it ‘considered it good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances – and it will generally amount to misconduct not to do so’.
Although, for the purposes of disciplinary action, an employer must still assess a case of potential misconduct in full and consider it in terms of its own merits this case is nevertheless of assistance to employers who are faced with employees who make covert recordings during the course of their employment.
If you would like to discuss this case in further detail or, if you have had an incident where an employee has covertly recording a meeting then contact a member of the Advisory team on 01274 864999.
