Covert recordings in the workplace – can the ends justify the means?
We live in a society in which the recording of our actions through cameras, screens and recording devices has increasingly become the norm in a large number of public spaces. This has created considerable legal tension between our rights to privacy as individuals as enshrined in declarations such as the European Convention on Human Rights and the tremendous utility of surveillance technology in providing for our collective security and other social goods.
The issue is a live one in employment law. Surveillance technology is potentially useful to employers as it enables them to monitor the performance and conduct of employees. It can also be useful to employees as a very direct means of evidence gathering for those who feel that they are being treated unlawfully but lack the concrete evidence to prove it. However, surveillance, particularly if it is covert, can impinge upon the privacy rights of other employees and damage workplace trust. For these reasons, a number of employers regard covert recordings in the workplace by employees as automatic 'gross misconduct' and a sacking offence.
Employment Tribunals have historically been wary of setting binding case law in this area and have been mindful of the hugely differing circumstances in which covert recordings can be made. However, in the recent case of Phoenix House v Stockman the Employment Appeal Tribunal did enter this contested territory and has given some extremely useful guidance.
The case concerned Ms Stockman who was a Finance Worker at a charity, Phoenix House. Ms Stockman was aggrieved as her role had been removed in an organisational restructure which she felt was biased against her. She therefore made a complaint of unfavourable treatment to her line manager Mr Betha who in turn met with his manager Mr Lambis to discuss her allegations. Ms Stockman stormed into this meeting to ask what was being discussed and refused to leave when asked. Thereafter she was invited to a meeting with HR which she covertly recorded and in which she was told that she would be disciplined for her earlier conduct. She then lodged a 'whistleblowing' grievance alleging that she had been harassed by Mr Lambis. The employer upheld the disciplinary allegation, dismissed her grievance and eventually dismissed Ms Stockman on grounds of 'relationship breakdown' as she would not withdraw the allegation against Mr Lambis.
The employment tribunal found that Ms Stockman's dismissal was unlawful as the grounds for 'relationship breakdown' were not made out and the employer's procedure had been flawed. However whilst the employer accepted this decision, it appealed against the tribunal's remedy finding arguing that if it had been aware of Ms Stockman's covert recording it would have dismissed her for gross misconduct so her compensation should be reduced to zero (the tribunal had made a reduction for contributory fault but this was for 10% only).
The EAT dismissed the employer's appeal. It found that a covert recording by an employee could amount to 'gross misconduct' (and that it was best practice for parties to be open with each other about recordings) but that this would be rare and it would usually be ordinary misconduct or no misconduct at all. It found that there was a range of potentially legitimate reasons as to why employees may wish to record meetings which included the need keep an accurate record, to protect the employee from a risk of misrepresentation and to enable the employee to obtain legal advice. The judgment suggests that covert recordings will only fundamentally breach trust and confidence in circumstances where the employee's motivations were vexatious, dishonest or in bad faith. The first instance tribunal had found that this was not the case as the Claimant had recorded the meeting because she felt had flustered and wished to protect herself.
This is a very modern finding by the EAT which accepts that technological change means that it is inevitable that the use of covert recordings in the workplace will increase. The judgment focuses on the motivation of the person making the recording and provides that tribunals should look at all the circumstances which have led to a recording being made. It recognises the dilemma which employees face when raising complaints in circumstances where they lack trust and confidence in their employer and feel that their position is under threat.
The EAT did not discuss the data protection or human rights issues raised by covert recordings and this decision may be subject to appeal. However based on the decision we would suggest the following guidance for employers:
- Ensure that internal procedures explicitly proscribe the use of covert recordings and that disciplinary policies include covert recordings as potential gross misconduct
- Exercise caution in making automatic findings of gross misconduct where employees have made covert recordings in the workplace.
- Make enquiries to establish why the employee felt the need to make a covert recording and form a view on whether this is a legitimate and justifiable reason.