Cecily Donoghue, employment solicitor in GL’s employment team considers the recent Unfair Dismissal case of Phoenix House v Stockman
In unfair dismissal cases, both the compensatory and basic awards can be reduced by the tribunal, potentially to zero, based on the employee’s conduct before dismissal. Secret recordings of meetings by an employee can be admissible evidence in cases if the tribunal thinks it is relevant. However, secretly recording a meeting might amount to misconduct, depending on the employer’s rules.
In Phoenix House v Stockman, the employee was unhappy about a restructure. She secretly recorded a meeting with HR. As part of an unfair dismissal claim, the tribunal accepted the employee’s explanation that she recorded the meeting because she felt flustered rather than to entrap the employer. They reduced her compensatory award by 10 per cent because of her conduct. The employer appealed, saying they would have dismissed the employee for gross misconduct had they known about the secret recording so her compensation should be reduced to nil. They said the secret recording was a breach of trust and confidence.
The Employment Appeal Tribunal upheld the tribunal’s decision. In the past, it was fair to assume that covert recordings were part of a plan to entrap the employer. These days, mobile phone technology makes it easier and more common to record meetings. Whilst secretly recording a meeting might usually amount to misconduct (except in the most pressing of circumstances), it isn’t necessarily gross misconduct. In this case, covert recording was not listed as a gross misconduct offence in the employer’s disciplinary rules. A secret recording doesn’t necessarily undermine trust and confidence either because it can happen for different reasons such as record keeping or to assist with getting legal advice. The EAT found that the tribunal was entitled to reduce compensation by only 10 per cent. The tribunal had correctly looked at the chances of the employee being fairly dismissed had the employer known about the recording.
This case gives employers helpful guidance on secret recordings at a time when every employee carries a device which can secretly record events. Employers may want to include covert recording of meetings as a specific example of gross misconduct in their disciplinary policies and ensure that employees understand the potential ramifications.
If you would like guidance on implementing a disciplinary policy, or updating an existing policy, please contact Nick Jones or Cecily Donoghue.