Phoenix House -v- Stockman  UKEAT/0284/17/OO UKEAT/0058/18/OO

It is potential misconduct for an employee to covertly record a meeting unless the most pressing of circumstances.

“There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere. 78.We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change. 79.That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.