Secret recordings – just part of the package now?

Posted on Aug 21, 2019

If you asked the ordinary person if secretly recording a conversation breaks trust and confidence the majority would probably say yes. However, recently in the Employment Appeal Tribunal this was not the case.

In the case of Phoenix House Ltd v Stockman, Stockman worked as a financial accountant for Phoenix House she complained of unfair treatment and one of the meetings she had with HR she secretly recorded. This recording only came to light once she had begun an unfair dismissal claim which she was successful in. Phoenix House then appealed against the award of compensation arguing the secret recording was a breach of mutual trust and confidence.  However, the Employment Appeal Tribunal dismissed this appeal.

In giving their decision the Employment Appeal Tribunal gave some guidance as on when covert recordings would not breach mutual trust and confidence. Firstly, the employee might have recorded their meetings to keep a record. As well as this, it may have been done to protect employees from misrepresentation. In addition, the employee may have made a recording to obtain legal advice. Therefore, the main issue is the purpose of the recording.

The Employment Appeal Tribunal warned that normally both parties should state their intention to record meetings and it would generally be a misconduct not to do so. Despite this, Stockman had not breached mutual trust and confidence by not disclosing she was recording the meeting as her intention was not to setup her employer or a negative one. Also, she only recorded one meeting which directly concerned her position and not anything to do with the business itself. Therefore, the compensatory award was not reduced.

This is an important case as whilst it reaffirms that generally conduct of this sort should be avoided by both employees and employers as it would normally breach mutual trust and confidence if for some reason recordings have been disclosed they may sometimes be allowed if the intent or purpose is one of a good nature. Therefore, this case should be a warning. The message is very clearly that transparency between both parties is key to ensuring mutual trust and confidence is not breached and whilst despite the lack of in this case it is clear that this is not the new norm. So once again we would advise employers and employees to always be clear in their actions.