Covert recording by employee- is it a breach of trust or potential gross misconduct?

1st March 2021 It is increasingly common for employees that are experiencing problems at work to covertly record meetings with their employer. Typically, this arises in grievance meetings, appraisal meetings and disciplinary meetings. Usually, employers can get very unhappy with this tactic being used, and when it becomes apparent that a meeting has been covertly recorded it will usually damage the existing relationship between the employer and individual.

A recent decision of the Employment Appeal Tribunal (EAT), in the case of Northbay Pelagic Limited v Anderson, examined the issues relating to an occasion where an employee set up a camera in his office, to which he had exclusive access, because he suspected that someone had entered his room and accessed his computer. He was subsequently dismissed by the employer for gross- misconduct. On taking his claim to the Employment Tribunal, the issue was raised, and the Employment Tribunal held that the employer’s decision to dismiss the individual fell outside a reasonable range of responses to the circumstances.

There can be many reasons why an employee makes a covert recording of a meeting at work. The reason could be entirely innocuous, such as wanting an accurate record of the meeting as he or she is unable to write a detailed note of the meeting during the meeting itself. Alternatively, the employee may be directly seeking to trap the employer into saying something that later can be used against them.

In 2019 the EAT gave some guidance on the use of covert recording and whether it amounted to gross misconduct. In that case, Phoenix House v Stockman, the EAT noted that what can and cannot amount to gross misconduct or misconduct is not really a question of law, but it is a question of the accepted standards and norms of behaviour. In that case the EAT was presented with the argument that making a covert recording was necessarily an act of gross-misconduct. The EAT concluded that it was not a situation where an Employment Tribunal is bound to conclude that covertly recording a meeting amounted to a breach of trust and confidence. It ruled that the purpose of the recording will be relevant to any assessment, what is actually recorded will be relevant, and the view of the employer to such activity (where expressed before the recording took place).

In the case of Northbay Pelagic Limited v Anderson, the employee concerned was a director of the company and shareholder in the company. He set up a web-enabled camera in his office, to which he had exclusive access, because he suspected someone had entered his room and accessed his computer. There had been good reason for him to have concerns about the use of the computer, as he had found it on the floor having previously left the office with the computer being on his desk. There was therefore a real reason for him to be concerned about someone using his office computer. The EAT concluded that the Employment Tribunal had been correct to conclude that the decision that the employer reached – ie to dismiss the individual for gross- misconduct- had fallen outside a reasonable range of responses.

In considering the decision of the employer, the EAT noted that the employer had failed to carry out a balancing exercise between the right to privacy and the individual’s wish to protect confidential information – where there was a negligible risk that persons other than those making entry to the room would be caught on camera. Without having carried out a balancing exercise and consideration of the competing issues, the employer had subsequently reached an unreasonable decision in dismissing the employee.

It comes as a surprise to many employers that the Tribunals will usually allow evidence that has been obtained through a covert recording to be admitted as evidence. The general test for this is to ascertain if the evidence in question (obtained covertly) is actually relevant to the issues in dispute in the case. So, if the recording was of a disciplinary hearing or grievance hearing that addressed the main issues in the employee’s case, then the recording will usually be relevant. This is particularly so where there is some disagreement or dispute as to what was actually said or done in such a meeting. Any recording of an employer’s managers discussing privately the appropriate outcome of the meeting (ie deciding on the appropriate sanction) will generally be inadmissible – but the record of the actual disciplinary or grievance meeting itself will usually be admissible. An Employment Tribunal may take a critical view, or express unhappiness at the behaviour of the employee in making the covert recording, but that does not mean it will not be allowed as evidence in the Tribunal hearing.

The lessons for employers seem clear. The employer could itself make a recording- and inform the individual in advance that it intends to do so. This should help remove a sense of suspicion between the parties, while also providing an accurate record of the meeting. Alternatively, if the employer has genuine reasons to object to staff making covert recordings, they should make that clear in their disciplinary and grievance procedures, and draw the issue to the attention of the individual going through that process.    

The dangerous approach for employers is to simply assume that the law will prevent the recording from being used in evidence in a court or Tribunal, and for employers to object without giving a clear justification for objecting (it simply looks like they have something to hide!).  

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.