Leaving data protection to one side for a moment, another frequently asked question is whether covertly recording meetings amounts to misconduct. The usual answer is that it is misconduct. However, in the case of Phoenix House v Stockman, it was found that the recording was not misconduct and therefore did not affect any compensation.
Tatianna Stockman worked for Phoenix House, a drug and alcohol addiction charity, in their finance department. Ms Stockman had worked there from 2010 but, following a restructure, her role was removed and she became the Payroll Officer on 22 May 2013. The following day, she complained to her Head of Finance that the Director of Finance was treating her differently and gearing the redundancy process against her. She alleged that she had the support of one of her colleagues who would back up these assertions.
There was a subsequent meeting between the Head of Finance, Director of Finance and Ms Stockman’s named colleague. Ms Stockman apparently entered this meeting and demanded to know the purpose of it and discussions that had taken place during the meeting. She was told that it was a private meeting and asked to leave.
Ms Stockman then had a meeting with the Director of Resources that she covertly recorded. During this meeting, the Director of Resources informed her that an investigation would take place regarding her barging into the meeting and her outburst. Ms Stockman said that she would raise a grievance which she lodged on 30 May 2019.
The investigation against Ms Stockman eventually turned into a disciplinary which left a final written warning on her record for 12 months. Ms Stockman appealed the decision but before the appeal hearing, she went through a mediation meeting between herself and the Director of Finance, which was unsuccessful. At the appeal hearing, she alleged that she could put the situation behind her and move past the issues. However, the chair of the appeal hearing said that there had been an irretrievable breakdown of the relationship and therefore she was dismissed immediately.
It was only during the Tribunal hearing that Ms Stockman disclosed the recording that she had made with the Director of Resources. Despite this, she was successful at Tribunal in her claim for unfair dismissal.
Phoenix House appealed the decision arguing that her compensation for the unfair dismissal should be reduced to nil on the basis of her pre-dismissal conduct, which they alleged would have amounted to gross misconduct, had they known about it.
The Employment Appeal Tribunal (EAT) dismissed the appeal on the basis that the Tribunal had not erred in their decision that the dismissal had been unfair because of insufficient notice before the appeal meeting and that Ms Stockman had asserted that she could put the situation behind her. The EAT went on to provide circumstances where a covert recording of a meeting may amount to misconduct and said that it would depend on a case by case basis as to the reasons for the recording and what was contained within the recording. The EAT also provided guidance on how this would affect compensation.
This case is a very useful reminder to ensure that an appropriate amount of notice is given before a hearing. We know that you want it over and done with as soon as possible but you have to give the individual sufficient time to properly prepare for the hearing. It also highlights that what the individual is saying in the hearing should also be taken into consideration when coming to a conclusion.
When you are having a disciplinary or grievance hearing, it is good practice to either declare or ask whether anyone in the meeting intends to record the meeting. It would be beneficial if you could rely on your own disciplinary or grievance policy which would hopefully state that covert recordings are either misconduct or gross misconduct and are not allowed. An alternative would be to simply, as a matter of practice, record all meetings that you have.
It was pointed out by the EAT that the recording of a meeting is sometimes missed off of the list of misconduct issues under organisations’ disciplinary policies. It is also rarely found under the gross misconduct. Therefore, if you wish to rely on this, then it would always be best practice to have something within your policy to reflect this.
If your policies and procedures do not include covert recordings then now would be a good time to update them. If you would like any assistance on this, please do not hesitate to contact the Employment team.
For more information on the Phoenix House v Stockman case, please visit: Phoenix House v Stockman - employment appeal tribunal.