Is making a covert recording in the workplace sufficiently serious to justify instant dismissal?
As the likelihood and occurrence of secret recordings in the workplace grows, it has become good risk management practice for employers to take pre-emptive measures to deter secret recordings and to provide clarity to the workforce on the organisation’s expectations and standards of acceptable behaviour. This includes the disciplinary action that may result if these rules are broken. In the absence of any express prohibition against recording a meeting or other matter at work without the employer’s permission, whether or not a secret recording is gross misconduct will depend upon the facts and circumstances of each case.
What is gross misconduct?
Gross misconduct is an act so serious that it justifies summary dismissal of an employee for a first offence, that is, dismissal without pay or pay in lieu of notice. Broadly speaking, the act must be one that irreparably damages the relationship of trust and confidence between the employer and employee, thereby making the working relationship impossible to continue.
Examples of gross misconduct typically include things like physical violence, theft or fraud, misuse of property or serious insubordination. However, what constitutes gross misconduct can often depend upon the context in which the conduct occurs. Your workplace might even have its own policy or rules, with specific prohibitions against certain types of misconduct.
In relation to secret or covert recordings at work, in the absence of any express prohibition against recording a meeting or other matter at work without your employer’s permission, whether or not this amounts to conduct so serious as to justify instant dismissal will depend upon the facts and circumstances of each case.
Is making a secret recording gross misconduct?
In any contract of employment there is an implied duty of mutual trust and confidence. This duty is implied into all contracts of employment and is a necessary part of any employment relationship. In other words, there is no need for this term to be expressed within the contract, either verbally or in writing.
The duty of mutual trust and confidence implies a duty on the part of both employer and employee not to act in such a way that is likely to destroy or seriously damage the relationship of trust and confidence between them. Further, this duty does not require malice on the part of the offending party, where an honest or foolish mistake can still result in the duty being breached.
In the context of an employee taking a covert recording at work, it is easy to see how the duty of trust and confidence could be breached, for example, where an employee secretly records a meeting or confidential conversation, either to entrap an employer by seeking to steer the employer into saying something to their disadvantage, or to otherwise gain a dishonest advantage.
That said, although by its very nature a covert recording is dishonest, this type of conduct is not always designed to obtain an advantage for the employee and place the employer at a disadvantage. As such, a covert recording will not necessarily undermine the trust and confidence between an employer and employee to the extent that this warrants summary dismissal.
In the recent decision of Phoenix House Ltd v Stockman UKEAT/0058/18/OO, the Employment Appeal Tribunal confirmed that whilst in most cases a covert recording of a meeting will amount to misconduct, whether this amounts to gross misconduct will depend upon a number of factors.
These factors include the following:
The purpose of the recording This could vary widely from the highly manipulative employee seeking to entrap the employer, to the confused and vulnerable employee seeking to keep a personal record of a meeting, or guard against misrepresentation when faced with an accusation or investigation, or simply to enable the employee to obtain advice from a union or elsewhere.
The extent of the employee’s culpability This could vary from an employee who has specifically been told that a recording must not be kept, either verbally or within any written disciplinary procedure, or has even lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. To constitute gross misconduct there will normally need to have been some prior warning to the employee regarding the seriousness of covert recording.
Subject matter of the recording This could vary between a meeting involving the employee in circumstances where a record would normally be kept and shared in any event, to a meeting where highly sensitive or confidential information relating to the employer or another employee is discussed. In the former case, the covert recording would be unlikely to amount to gross misconduct, or even misconduct, but in the latter case, the recording is likely to involve a serious breach of the rights of one or more others.
In the facts of Phoenix House Ltd v Stockman, the EAT found that the claimant had not recorded any confidential information of either the business or other individuals, but rather had recorded a single meeting concerned only with her own position and without the intention of entrapment. As such, this did not amount to gross misconduct.
Dealing with an incident of secret recording
Even in circumstances where the taking of a covert recording by an employee within the workplace is so serious that it amounts to gross misconduct, a full and fair investigation and disciplinary process should still be followed, as outlined in the ACAS code of conduct, otherwise run the risk of facing a tribunal complaint for unfair dismissal.
Any failure to follow the ACAS Code does not, in itself, make you liable to proceedings, nor does it automatically make any subsequent dismissal unfair. However, an employment tribunal can increase any award of damages made against you by up to 25% for any unreasonable failure to follow this guidance.
What constitutes fair disciplinary action will depend upon all the circumstances of the case. That said, as a minimum, the procedure should include a thorough investigation of the facts, collating and providing the employee with any evidence in advance of a disciplinary hearing, typically in the form of witness statements. This will enable the employee to answer the case against them.
At the hearing itself, the employee must be given an opportunity to put their side of the story, ask any questions and call any witnesses in rebuttal. The employee will also have the right, on any reasonable request, to be accompanied to the hearing by either a work colleague or a trade union representative or official.
The employee’s companion has the right to present and sum up the employee’s case at the hearing, and while they cannot answer questions on the employee’s behalf, they can confer with the employee and respond to any views expressed.
Where you decide to take disciplinary action against the employee, you must notify them of your decision in writing, explaining their right to appeal, including the right to be accompanied at an appeal hearing by their companion. Your written notification should set also out the reasons for any decision to dismiss the employee, their period of notice, if any, and the date on which their contract of employment will be terminated.
An employee must be given an opportunity to appeal any decision to take disciplinary action against them. This can either be on the basis that the outcome is wrong or unjust, or that any stage of the disciplinary procedure was unfair.
The disciplinary process, from investigation through to any appeal stage, must be carried out without unreasonable delay, while still giving the employee sufficient time to prepare any defence or appeal. Further, wherever possible, any appeal should be dealt with by someone who has not already been involved with the disciplinary action. Equally, it is not ideal to have the same person deal with the investigatory and disciplinary stages of the process, especially where misconduct is alleged.
During the course of the disciplinary process, you may be justified in suspending the employee from work, especially given the potential seriousness of the matter alleged. However, any period of suspension should be as brief as possible and kept under constant review. You should also set out your reasons in writing as to why they are being suspended, explaining that the decision to suspend is not to be construed as disciplinary action.
Typically, any suspension will be on full pay, although an employee can be suspended without pay if their contract of employment makes express provision for this. Where you seek to rely on an express contractual provision to suspend without pay, you must still act reasonably in so doing, for example, by keeping any period of suspension to an absolute minimum.
Finally, you should also retain an accurate written record of the entire disciplinary process, from the initial allegation relating to a covert recording through to any appeal, including the reasoning behind any decision-making.
Taking disciplinary action
Having conducted a disciplinary hearing and, where necessary, an appeal hearing, you will need to decide whether the allegation of a covert recording is substantiated and, if so, whether this amounts to misconduct or gross misconduct. You will also need to decide if any disciplinary action is warranted.
Your decision should be based on the evidence collated during the course of the investigation, together with any further evidence and explanation advanced by the employee and any witnesses during the course of the disciplinary, and any appeal, hearing.
At all times, you should have regard to what is fair and reasonable, taking into account any explanation provided for the alleged misconduct, together with any mitigating circumstances. By way of example, the employee who has recorded a meeting to create a transcript for his or her own records, where there is absolutely no intent to use, or misuse, this information against the employer, is clearly not as culpable as the employee who secretly records a meeting to entrap their employer in contemplation of tribunal proceedings.
There are a number of decisions you could make following a disciplinary hearing, although what is fair and reasonable will depend upon all the circumstances. Where the misconduct is considered proven but, having regard to the circumstances, is still regarded as relatively minor, you may want to issue a written warning. This should set out the nature of the misconduct and the consequences of further complaint, for example, dismissal.
In circumstances, where the misconduct is made out and the matter is deemed especially serious, you may be justified in summarily dismissing the employee.
As a means of minimising any risk of misconduct from taking place within the workplace, and as a matter of good employment practice, you should put your disciplinary procedure in writing, making this easily accessible to all employees. This could either be set out within the contract of employment or contained within a separate document, such as the staff handbook. You should also make your disciplinary procedure accessible to the workforce as a whole, for example by making it available on any staff intranet site.
The procedure should clearly explain what behaviour might lead to disciplinary proceedings, including examples of what constitutes misconduct and gross misconduct, and what action may be taken in consequence, including a clear warning about summary dismissal for gross misconduct.
In particular, especially given the prevalence of smart phones that can be easily used to record meetings or confidential conversations at work, you should specifically warn employees within your disciplinary policy and procedure that any attempt to record a meeting, or other confidential matter, without the employer’s consent will amount to either misconduct or gross misconduct.
DavidsonMorris are experienced employment law specialists, with expertise in disciplinary procedures and contract terms and conditions.
Summary dismissal of an employee may not always be the most appropriate course of action, depending on the facts, even if a secret recording is stated to constitute gross misconduct in your organisation. We work with employers to provide timely advice and guidance on next steps while safeguarding your organisation’s best interests and reputation.
If you have a question or need advice on any aspect secret recordings and gross misconduct, contact us.
Recording Conversations at Work: FAQs
What is covert recording?
Covert recording at work refers to employees making secret recordings, usually in HR meetings and disciplinary hearings, without the employer’s prior knowledge or permission.
Are covert recordings admissible in employment tribunals?
In the UK, Employment Tribunals are not bound to find secret recordings inadmissible and are not bound to find the existence of a covert recording automatically undermines trust and confidence between the employer and employee. Each case will turn on its own facts.
Can an employer secretly record conversations at work?
Employers are advised to seek consent from anyone they intend to record, not least to comply with data protection duties.
How can DavidsonMorris help?
DavidsonMorris' employment lawyers are on hand if you are dealing with an issue relating to covert recordings in the workplace, from advice on developing a policy, to guidance on tribunal matters and the data protection implications of workplace recordings.
Last updated: 27 January 2020