The Employment Appeal Tribunal (EAT) provided some helpful guidance last Friday regarding covert recordings in the workplace, finding that such action by an employee will generally amount to misconduct, “save in the most pressing circumstances”. According to the EAT, relevant factors to assess whether such action amounts to misconduct entitling the employer to dismiss may include:

  • The purpose of the recording e.g. the situation may range from a highly manipulative employee seeking to entrap the employer, to a confused and vulnerable employee seeking to keep a record or guard against misrepresentation.
  • The extent of the employee’s blameworthiness e.g. an employee who has been explicitly prohibited from making a recording will be more culpable than an inexperienced employee who scarcely thought about the blameworthiness of doing so.
  • What has been recorded e.g. the tribunal is likely to take a dimmer view of the employee’s conduct if the meeting concerned highly confidential matters or personal information relating to another employee;
  • Evidence of the employer’s attitude e.g. is the making of covert recordings listed as misconduct on the employer’s disciplinary policy?

What should employers take away from this case?

  1. Consider amending your disciplinary policy to add “making covert recordings” to your list of examples of behaviour which could constitute gross misconduct. Your disciplinary and grievance policies could both be updated to state that the company’s consent should always be sought before recording meetings.
  2. If you are defending an employment tribunal claim and a covert recording is disclosed in the course of the proceedings, consider making an application for the recording to be excluded from the proceedings (although note that tribunals will often reject such applications if the content of the recording is relevant) and, if the employee succeeds with their claim, consider arguing that their compensation should be reduced on the basis that the employee committed misconduct.
  3. Covert recordings made by the employer could breach the implied duty of trust and confidence owed to the employee and may lead to grievances or even constructive unfair dismissal claims. Employers should therefore make it clear if they intend to record a meeting.