When things are starting to go wrong at work and with the ease of the touch of a button on a smart phone staff commonly record conversations. Of course, no one says “I am just about to record this, are you ok with it, can you sign this document saying you are ?” so these recordings are invariably covert. Things worsen, the relationship falls apart and the employee takes the employer to Tribunal and they want to rely on said recording to prove their case. At this point we have to give, at times, difficult advice.
Firstly, we have to tell our clients that under the law, such evidence is usually admissible irrespective of whether the recording breached privacy or data protection laws. Case law does not directly consider admissibility, yet it grapples with whether covert recordings by an employee amount to a breach the implied term of trust and confidence. In Phoenix House v Stockman UKEAT/0058/18 the employer argued that had it known about the recording, it would have legally dismissed the claimant for gross misconduct. The EAT rejected the employer’s appeal, holding that the ET was entitled to make an assessment of the particular circumstances. Relevant factors included whether the employee recorded the meeting for entrapment purposes or merely to keep a record or guard against misrepresentation. It was relevant that the employee recorded a single meeting concerned with her own position rather than the confidential information of the business or other individuals. There are both objective and subjective elements to the test; whether the employee would have been dismissed had the employer known of the recording is objective and the tribunal must subjectively consider whether it would be just and equitable to not award compensation. Nevertheless, the EAT concluded that not disclosing that a recording is being taken could still amount to misconduct.
Secondly, we have to advise our clients that these recordings have to be disclosed to the other side at the appropriate time – you cannot decide to “hide” relevant evidence. So, for individuals it’s very much rock and a hard place situation – you have to disclose the recording to the other side and if you do, your former employer will invariably argue at Tribunal that you should not have done so and if they had known about it, you would have been dismissed. This can have a drastic impact on any compensation awarded. If you are an employer, and to bolster your opportunity to pursue this argument, you should include covertly recording meetings / conversations as one of your examples of gross misconduct.
For employees, It is far better and safer to make a contemporaneous note of a conversation as soon as you can, after it has happened. For employers, you should ask your member of staff to agree the minutes or send them a copy of it. For employees, this will be more difficult especially if things were said that shouldn’t have been said – the employer will invariably try to back track and deny that he said that – so keep it to yourself, have a way of showing when it was typed up to prove it is contemporaneous and use it when you need to.
