What can I do if an employee makes covert recordings at work?

Employees may secretly record conversations at work for several reasons including to:

• collect evidence;
• ensure what they say won’t be misinterpreted;
• keep a record; and
• obtain advice.

Employers may feel that covert recordings violate their trust and that such conduct justifies disciplinary action. This article examines what action employers may take against an employee who has secretly recorded a conversation at work and discusses some ways of preventing such recordings in the future.

Breach of trust and confidence

While employers may reasonably feel that covertly recording a meeting or conversation is a breach of the implied term of trust and confidence, the Employment Appeal Tribunal (EAT) decided in the case of Phoenix House Ltd v Stockman 2019 that covert recordings will not necessarily amount to a breach. In such cases a tribunal should consider all the surrounding circumstances including:

• the employee’s reasons for making the recording;
• the employee’s blameworthiness;
• the subject matter of the recording; and
• evidence of the employer’s attitude towards such conduct.

Gross misconduct

Even though secretly recording conversations at work will not necessarily amount to a breach of the implied term of trust and confidence, the EAT also acknowledged that it is good practice for parties  to communicate their intention to record, and that in most cases an employee covertly recording a workplace meeting or conversation would be guilty of misconduct. The employee could therefore be taken through a disciplinary procedure and receive sanctions such as a written warning.

In some instances covert recording may amount to gross misconduct. This will depend on the surrounding circumstances, but is more likely where your disciplinary policy explicitly states that creating covert recordings amounts to gross misconduct. If it is a case of gross misconduct you may be entitled to summarily dismiss the employee, though you may want to take advise before doing so, especially where the employee has over two years’ service.  

Will a covert recording be admissible as evidence at an Employment Tribunal?

Even if the covert recording amounts to misconduct or gross misconduct an Employment Tribunal is likely to allow the recording to be presented as evidence if it believes the recording is relevant to your employee’s claim. The recording is less likely to be allowed if the employee was not present during the recording, for example if they left the room while the disciplinary panel discussed their decision. In such cases where the employee was not themselves present the recording would only be admissible in exceptional circumstances.

An employee who succeeds in their tribunal claim may also have their award reduced to reflect their misconduct in making the recording.

Preventing recordings

It is advisable to state in your disciplinary policy that producing covert recordings will be treated as gross misconduct and to communicate this policy to your employees. Before any meeting you should remind your employee of this policy and ask them to confirm that they are not recording. Allowing employees to be accompanied to a meeting by a companion of their choice may also make them feel more secure and less likely to need a recording.

Even with these precautions it is very difficult to completely prevent covert recordings if an employee is determined to make one. You should therefore ensure your managers and HR staff are aware that meetings may be recorded and are properly trained on how to carry out meetings with employees.

Our Employment Team can advise you if you become aware that an employee has secretly recorded a meeting or conversation at work, and can review your disciplinary policy to ensure making covert recording is included as an example of gross misconduct. You can contact our team by calling 023 8071 7717 or emailing employment@warnergoodman.co.uk.