Tribunal rules covertly recording meetings is not always gross misconduct

9 Jul 2019 By Maggie Baska

EAT finds payroll officer was unfairly dismissed, and clarifies that the purpose of recording should be taken into account

Covertly recording a meeting is not always misconduct, and is acceptable in specific cases such as when a vulnerable employee is seeking to guard against misrepresentation, an Employment Appeals Tribunal (EAT) has ruled.

The EAT upheld a ruling that Tatiana Stockman, who worked for the charity Phoenix House, was unfairly dismissed after a dispute between her and her manager, and in doing so clarified that the purpose a covert recording should also be considered in determining whether making such a recording is gross misconduct.

During the course of the initial ET, it transpired that Stockman had made a covert recording of a meeting, and Phoenix House appealed the judgment arguing if they had been aware of the covert recording then Stockman would have been dismissed for gross misconduct.

However the EAT upheld the ET’s ruling, saying the reasons a recording were made needed to be taken into account.

Stockman worked for Phoenix House, a drug and alcohol addiction charity, in its finance department from March 2010 until November 2013.

In 2013 the finance department was restructured and Stockman’s role was removed. She applied for other posts within the charity and became a payroll officer on 22 May 2013.

But the following day, Stockman complained to the head of the finance department, Andrew Betha, that the director of finance, George Lambis, was treating her differently and that the restructuring process was biased against her.

Stockman said another colleague agreed with her, and a meeting between Betha, Lambis and this colleague – but not Stockman – was arranged to discuss the complaint. However, the EAT heard that Stockman walked into the room during the meeting and “forcefully demanded” that Lambis tell her what the conversation was about. 

Lambis replied the meeting was private and she should leave the office, a request was repeated at least twice more before Stockman left, saying she would raise a grievance.

Paula Logan, director of resources for Phoenix House and responsible for its HR department, spoke to Stockman and said she would investigate what happened. The tribunal heard this was the meeting which Stockman covertly recorded.

Logan told her that the action of interrupting a meeting and failing to leave would be made the subject of disciplinary action. To this, Stockman said she would lodge a grievance.

Stockman lodged her grievance on 30 May. She alleged she “had not been provided with a safe place of work” and had been harassed by Lambis. As a result, her mental and physical health was affected, and she wished to be separated from working with him. 

Phoenix House charged Stockman with a disciplinary offence arising from the incident on 23 May and held a hearing on 16 August, for which Stockman was absent due to her being off sick from work. She was given a 12-month formal written warning, which she appealed, and was placed on authorised leave until the appeal concluded.

A mediation meeting on 15 November between Stockman and Lambis was unsuccessful. Following this meeting, during a further meeting on 25 November, Stockman said she wished to return to work and would be able to put the grievance behind her. But the chair of the meeting said the relationship between Stockman and Lambis had “broken down irretrievably” and Stockman was dismissed with immediate effect.

In 2017, the London South employment tribunal ruled Stockman had been unfairly dismissed because she had not been given sufficient notice about the hearing and said it was unreasonable for the charity to find there had been a breakdown in the working relationship between Stockman and Lambis as she said she would put the matter behind her.

Phoenix House appealed the ruling, saying if it had been aware of the covert recording then Stockman would had been dismissed for gross misconduct.

However the EAT upheld the original tribunal’s rulings and said the purpose of such a recording was relevant.

Judge David Richardson noted there were a wide range of reasons that an employee may covertly record a meeting, from “highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation”.

“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,” he said.

Judge Richardson added the extent for an employee’s blameworthiness should also be considered in determining whether covert recording is gross misconduct.

Nikita Sonecha, associate in the employment team at Royds Withy King, said the ruling confirmed that covert recording may trigger disciplinary action against the employee, but it was rare for covert recordings by employees to be deemed an act of gross misconduct. 

“With this in mind, it would be prudent for employers to review their disciplinary procedures to ensure that the possibility of employees recording hearings is explicitly prohibited,” Sonecha said. “This will no doubt assist with establishing clear rules for the conduct of hearings.”

She added that if an employer feels that recordings are being made and an employee lies, then such instances could be used as evidence as to their credibility at a tribunal. 

Phoenix House has been contacted for comment. Stockman could not be reached for comment.

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