Phoenix House Ltd v Stockman UKEAT0284/17 (no.2)
During this long-running case, the claimant disclosed a covert recording of a meeting with HR. Her various claims for unfair dismissal, whistleblowing and victimisation were all eventually upheld, following a previous appeal to the EAT. The employer sought to have her compensation reduced on just and equitable grounds to reflect the claimant’s misconduct in recording the meeting.
The employment tribunal reduced the amount of compensation by 10% on the basis that the recording did not amount to entrapment as claimed by the employer, but was instead a result of the claimant feeling flustered and under pressure at the time of the recording. The employer brought a further appeal against the tribunal’s decision to uphold the claims of whistleblowing and victimisation, and against the approach it had taken to assessing the level of compensation.
The EAT has dismissed the employer’s appeal. In relation to the award of compensation, it found that the tribunal had conducted a legitimate assessment of the facts and had reduced the compensation accordingly. The claimant had recorded a single meeting concerned with her own position rather than the confidential information of the business. It was not carried out for the purpose of entrapment.
In its decision, the EAT has provided some useful guidance on covert recordings made by employees during meetings. It noted that in the past, covert recordings were harder to obtain and were more likely to be used for the purposes of entrapment or to otherwise gain an unfair advantage. With the prevalence of mobile phones, it is now much easier for recordings to be made. It remains good practice to inform parties of an intention to record a meeting, and it is likely to amount to misconduct for a failure to do so. However, the EAT considered it unlikely that a covert recording would amount to gross misconduct. Recordings might be made for a variety of reasons, and it is necessary to consider the purpose of the recording, the extent of the employee’s blameworthiness, the subject matter recorded and evidence of the employer’s attitude to such conduct (for example, whether it is dealt with in any of the employer’s policies).
Employers should take this guidance into account before considering disciplinary action against an employee who has made a covert recording, and should consider making provision for it in their disciplinary and grievance procedures.
This article is from the September 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at September 2019.
The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts' Employment Law Team.