In the recent case of Phoenix House v Stockman, an Employment Appeal Tribunal (EAT) had to rule whether an employee covertly recording meetings at work amounted to gross misconduct.
Phoenix House v Stockman – Case details
Ms Stockman (the Claimant) worked for alcohol and drug addiction charity, Phoenix House (the Respondent), in the finance department. The department underwent a restructure in 2013, which meant that the Claimant would be made redundant. As a result, she applied for a different role at the charity and was successful.
Despite accepting the new job, she complained to the Head of Finance that the department restructure was biased against her and that the Director of Finance, Mr Lambis, was treating her unfavourably. According to the Claimant, a work colleague agreed with her regarding her complaint.
Mr Lambis was made aware of the complaint against him and called the Claimant’s work colleague into a meeting with him and the Head of Finance. During the meeting, the Claimant entered the meeting room asking about the purpose of the meeting and refusing to leave when asked to.
As a result of interrupting the meeting, the Claimant was called into a meeting with the Director of Resources, where she was informed that her actions would be subject to disciplinary action. The Claimant secretly recorded this meeting without informing the Respondent that she was doing so.
The Claimant lodged an internal grievance where she argued that she had been harassed by Mr Lambis and that the Repsondent was not providing a safe place for her to work in. She said that the result of this had an effect on her physical and mental well-being and requested to be separated from working with Mr Lambis with immediate effect.
The Respondent held a disciplinary hearing with the Claimant in August 2013, which resulted in her receiving a 12 month written warning. The Claimant appealed against this and was placed on authorised leave pending the outcome.
Further meetings took place, including mediation, to determine if the relationship between the Claimant and Mr Lambis had irretrievably broken down beyond repair. A hearing with the Head of HR was arranged, where despite the Claimant stating that she wished to return to the company and would work with Mr Lambis, the person chairing the meeting (a manager from a different department) deemed that their working relationship had irretrievably broken down. The Claimant was dismissed with immediate effect.
Unfair dismissal claim
The Claimant made an unfair dismissal claim against Phoenix House, which was successful in 2016. The Employment Tribunal (ET) ruled that the Claimant had been unfairly dismissed from her employment as she had not been given enough notice of the hearing in which she was subsequently dismissed.
Additionally, the Claimant had not been provided with enough information in relation to the conduct case the Respondent was bringing against her.
Covert recording and EAT proceedings
During the ET, the Claimant disclosed that she had recorded the meeting with the Director of Resources without informing the Respondent.
The Respondent argued that the compensation awarded to the Claimant for unfair dismissal should be reduced on ‘just and equitable’ grounds and that had they been aware of the covert recording previously that they would have dismissed her for gross misconduct in respect of that act.
The ET referred to the charity’s disciplinary policy and ruled that as secret recording was detailed in the policy, the Claimant was not using it to deceive her employer. Therefore, this could not be considered gross misconduct. The EAT agreed with this judgment, ruling:
“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.”
Tips for employers
- Have a policy which says that meetings and hearings should not be recorded without consent and remind employees of this at the outset of every hearing. This might not help you get the evidence excluded if it is relevant but it could call in to question the employee’s credibility.
- Keep an eye out for behaviour which would suggest that the employee may be recording the meeting (such as a phone on the table) and ask them to confirm that this is not the case and to switch their phone off. You can refuse to proceed with the meeting until you are sure that the employee is not recording it.
- If you have breaks during the meeting, either ask the employee to remove their belongings from the room during the break or better still, retire to a different room to deliberate.
- It can be tempting to relieve the tension of a difficult or lengthy hearing with a joke or comment about the employee or their representative once you adjourn but think carefully about how this would sound played back to an Employment Judge!
- Remember that comments which are made during private deliberations which are discriminatory, offensive or malicious are likely to be viewed as so relevant to a case that they should be disclosed.
How Nelsons Can Help
For further information or to comment on this article, please contact our Employment Law team in Derby, Leicester, and Nottingham on 0800 024 1976 or via our online form.