covert recordingemployment lawtrust and confidence

These days the possibility of someone making a recording of a conversation is potentially much more of an issue than it used to be, as a result of doing so easily by using a smartphone.

Contrary to popular perception the mere fact of recording a conversation, in a face to face meeting or by phone, is not in itself a criminal offence and is not prohibited. If the recording is purely for personal use there is no need to obtain consent or even to let the other person know. However, selling the recording or publishing it without consent can be a criminal offence. Journalists often record conversations, sometimes in secret, but then seek consent or argue that recordings have been obtained in the pubic interest.

You will no doubt have received a call from a business which begins with the caller saying that calls may be recorded for training or evaluation purposes, or something similar. This is often stated to be to ensure compliance with the Telecommunications Act 2000 and the Data Protection Act 2018. As an aside, this probably isn’t sufficient. Under GDPR the valid grounds for recording these calls are:

  • The people involved in the call have given consent to be recorded
  • Recording is necessary for the fulfilment of a contract
  • Recording is necessary to fulfil a legal requirement
  • Recording is necessary to protect the interests of one or more participants
  • Recording is in the public interest, or necessary for the exercise of official authority
  • Recording is in the legitimate interests of the recorder, unless those interests are overridden by the interests of the participants in the call

Under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 calls may be recorded for:

  • Establishing facts and evidence for business transactions
  • Ensuring compliance with regulatory or self-regulatory practices
  • Ascertaining and demonstrating that standards are being met
  • Defending national security
  • Preventing or detecting crime
  • Investigating or detecting the unauthorised use of that or any other telecommunication system
  • Safeguarding the effective operation of the telecommunications system

If, like me, you occasionally enjoy a bit of mischief-making, keep the list to hand and ask the caller to specify the law that they are relying on. Odds-on they will not even know or be able to identify any of the above grounds!

In a work situation, the position is not so straightforward. There is an implied duty of trust and confidence which applies to all contracts of employment, whether or not they are in writing.

In Phoenix House Ltd v Tatiana Stockman the Employment Appeal Tribunal (EAT) considered whether covert recording in the employment context is a ground for dismissal for gross misconduct.

In the employment tribunal Ms Stockman claimed for unfair dismissal, whistleblowing, race discrimination and victimisation and breach of contract. The complaints of unfair dismissal and whistleblowing were upheld. There was an appeal as well as a cross-appeal. The issue which primarily concerned the EAT in the latest appeal was the covert recording of a meeting. Most of the background is not relevant.

What is significant is that it emerged in evidence that Ms Stockman made a covert recording. She became involved in a restructuring process in which she attended a meeting with a Ms Paula Logan, director of resources of the employer and ultimately responsible for the HR department. Ms Stockman recorded that conversation but did not let Ms Logan know that she was doing so. In the course of the meeting Ms Logan said that she would be investigating a previous meeting which Ms Stockman attended and refused to leave, having been told that the meeting was private. Ms Stockman had become distressed at the prior meeting and had said that she would raise a grievance. Ms Logan told her that her action of interrupting a meeting and refusing to leave would be made the subject of disciplinary action.

At the remedy hearing the employer said that had it known about the recording it would have dismissed Ms Stockman for gross misconduct so that she should not be entitled to any award.

The employment tribunal concluded that the recording was not made for the purpose of entrapment. Rather, she was flustered at the time and did not know whether the recording would work. She made a transcript of it in order to discharge her disclosure requirement in the proceedings. The employer had not stated in its disciplinary procedure that covert recording was an example of gross misconduct. The tribunal concluded that there was a low chance that knowledge of the recording would have resulted in a fair dismissal and assessed that chance at 10%. Compensation was reduced accordingly.

It was contended by Counsel for the employer that:

…any covert recording of a confidential conversation in the absence of a pressing justification was a breach of the implied term of trust and confidence because it is of its nature dishonest conduct designed to obtain an advantage for the employer and place another at a disadvantage.

paragraph 60 of the judgment

It was also contended that secret recordings cannot lead to any conclusion other than the intention to entrap.

As I mentioned at the beginning of this post, His Honour Judge Richardson took account of how times have changed:

There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere.

We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. 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. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; 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. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change.

paragraphs 77 and 78 of the judgment

Judge Richardson then offered some useful guidance.

That said, we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

The result was that the appeal on this ground was dismissed.

The upshot is that, taking into account how times and technology have changed, the obvious precaution is to cite covert recordings as an example of gross misconduct in a disciplinary procedure. If an employee then makes such a recording, the likely outcome is known in advance and almost certainly fair.