Secret Recordings: Can They Be Gross Misconduct?

With the technology available on mobile phones, it is now relatively easy for employees to secretly record workplace meetings. Under UK law, any recording of parts of a meeting during which the employee was present may be admissible in evidence if an employment tribunal deems it relevant. However, while undisclosed recordings typically amount to misconduct, whether they rise to the level of gross misconduct—justifying summary dismissal—is less certain.

The Facts

In Phoenix House Ltd v Stockman (UKEAT/0284/17 (No. 2)), Ms Stockman was a Financial Accountant whose role was made redundant in a restructure. She accepted a more junior position but felt unfairly treated and raised concerns with her line manager. A meeting was convened between her colleague, the Head of Finance and the Finance Director—excluding Ms Stockman. Upon discovering this, she interrupted the meeting, demanded to know what was said and refused to leave.

Later that day, Ms Stockman was asked to attend a disciplinary meeting with the Head of HR. She secretly recorded this session, then submitted a grievance which was dismissed. The misconduct finding was upheld, mediation failed and the employer concluded the mutual trust and confidence relationship had broken down, leading to her dismissal.

Ms Stockman successfully claimed unfair dismissal, whistleblowing detriment and victimisation in the employment tribunal, but her compensation was reduced by 30%—including a 10% reduction for the undisclosed recording. Phoenix House appealed to the Employment Appeal Tribunal (“EAT”), arguing that had it known about the recording it would have summarily dismissed her without any award.

The EAT’s Analysis

The EAT dismissed the appeal, affirming that a secret recording does not automatically destroy mutual trust and confidence. Instead, the tribunal must assess multiple factors:

• Content of the recording: Recording highly confidential business information is more likely to amount to gross misconduct than a routine discussion where notes would normally be shared.
• Purpose of the recording: Was it intended to entrap the employer, or simply to keep an accurate record and guard against misrepresentation?
• Employee’s blameworthiness: Did the employee ignore explicit instructions not to record, or was the action taken out of inexperience or distress?
• Employer’s disciplinary policy: Does it specifically list covert recordings as an example of gross misconduct?

In Ms Stockman’s case, the EAT found no intent to entrap and noted that covert recordings were not identified as gross misconduct in Phoenix House’s policy. The tribunal therefore correctly applied a 10% compensation reduction rather than denying all relief.

Practical Tips for Employers

To manage the risks associated with undisclosed recordings and maintain trust, employers should consider:

• Meeting protocols: At the outset of disciplinary or grievance meetings, state that no recordings are permitted and ask attendees to switch off mobile devices.
• Private deliberations: Leave the meeting room to conduct discussions, reducing the opportunity for covert recordings.
• Policy review: Update disciplinary policies to include covert recordings as an explicit example of gross misconduct, ensuring employees are aware of the consequences.
• Conduct guidance: Remind managers that any unguarded comments could be used as evidence; they should always behave reasonably and professionally in formal meetings.

Article by Weil Gotshal & Manges LLP – Simon Gorham