HR FEATURE: Covert recording by employees.
Written on 23/09/2019

If an employee covertly records a meeting does this amount to misconduct? 

The Employment Appeals Tribunal  considered this point in Phoenix House v Stockman.  An employment tribunal found that Ms Stockman had been unfairly dismissed by her employer, Phoenix House.  When considering compensation, the employer argued that any compensation should be reduced because prior to her dismissal, she made a covert recording, which meant she was guilty of misconduct.   Therefore, her compensation should be reduced on a ‘just and equitable’ basis to reflect her misconduct. 

The EAT concluded that it is good practice for an employee or employer to say if they will be recording a meeting, and it is generally misconduct if they do not, except in the most pressing of circumstances. The EAT did, however, note that employers rarely list covert recording as an example of gross misconduct in disciplinary procedures. 

IFAC have amended their documentation, including the contract of employment, to state that covert recording is an example of misconduct.

Here is the list from page 31 of the employee handbook that all your staff should have.

You will be liable to disciplinary action if you are found to have acted in any of the following ways:-

  • failure to abide by the general health and safety rules and procedures;
  • smoking anywhere inside our premises;
  • consumption of alcohol on the premises without prior permission;
  • persistent absenteeism and/or lateness;
  • unsatisfactory standards or output of work;
  • rudeness towards clients, members of the public or other employees, objectionable or insulting behaviour, harassment, bullying or bad language;
  • failure to devote the whole of your time, attention and abilities to our business and its affairs during your normal working hours;
  • unauthorised use of our computer equipment, E-mail and Internet, including covert recording of meetings
  • failure to carry out all reasonable instructions or follow our rules and procedures;
  • unauthorised use or negligent damage or loss of our property; and
  • failure to report immediately any damage to property or premises caused by you.

Fully amended employee handbook is included in the document library on BAT.


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