Employees covertly recording on a smartphone is becoming an increasingly common feature in cases which deal with workplace issues that make their way to the Employment Tribunals.

It has long been clear that the act of an employee covertly recording a meeting at work may amount to misconduct (depending on the circumstances). However, the recording itself may be admissible as evidence before an Employment Tribunal in certain cases.

This article explores some recent cases where the courts and tribunals have considered covert recordings in the workplace.

Phoenix House Ltd v Stockman [2019]

Phoenix House (Phoenix) employed Ms Stockman as an accountant. She felt that an internal restructuring process was biased against her and that the Finance Director had treated her differently to other employees.

Ms Stockman made a formal complaint to the Head of Finance. Phoenix invited the Finance Director and Ms Stockman’s colleague to an informal investigation meeting. Ms Stockman forcefully interrupted the meeting and refused to leave, despite being asked to do so. When Phoenix later invited Ms Stockman to a separate meeting with HR, she covertly recorded that meeting.

The Employment Tribunal held Ms Stockman’s recording admissible as evidence in respect of her successful claim of unfair dismissal.

Phoenix appealed to the Employment Appeal Tribunal (EAT). They argued that Ms Stockman’s compensation for unfair dismissal should be reduced to nil. This was on the basis that, had they known about the covert recordings at the time, this would have justified her dismissal on grounds of misconduct.

Decision

The EAT rejected Phoenix’s appeal, upholding Ms Stockman’s unfair dismissal claim. This was on the basis that:

  • Phoenix had no policy stating that staff could not record meetings. Neither did they have a policy that covert recording amounted to a disciplinary offence;
  • an employee’s reasons for making a recording will be relevant when considering whether the act amounts to gross misconduct; and
  • a vulnerable employee seeking to keep a record or to guard against misrepresentation is very different from a highly manipulative employee seeking to entrap their employer.

The EAT was satisfied that Ms Stockman had not sought to use the recording as a form of entrapment.

Lopez Ribalda v Spain [2020]

Ms Ribalda worked as a cashier at a leading Spanish supermarket chain. In June 2009, her manager identified that there were significant stock discrepancies. As a result, they put up CCTV cameras in the supermarket as part of an investigation.

The supermarket installed visible cameras aimed at identifying thefts by customers. However, they also put other cameras in place to help identify thefts being committed by employees at the cash desks. Those were concealed. The supermarket did not specifically inform employees about the concealed cameras and covert recordings.

The supermarket caught Ms Ribalda and her colleagues on video stealing items or helping other co-workers and customers to steal. Five co-workers admitted theft and were dismissed. They subsequently made claims for the Spanish equivalent of unfair dismissal. They alleged that the supermarket had breached their right to privacy under Article 8 of the European Convention on Human Rights.

Decision – ECHR

The Spanish Tribunal and High Court held that the employer had obtained the video surveillance lawfully with the legitimate, appropriate aim of detecting theft at the supermarket. However, the ECHR took a different view.

The ECHR concluded that the Spanish courts had failed to strike a fair balance between the rights involved. It decided that the Spanish courts had not taken into account the fact that the measure was in breach of the Spanish legal requirement to inform those affected about the collection of personal data. The covert surveillance was not justified as the employees had a reasonable expectation of privacy in the workplace.

The Grand Chamber – ECHR

The supermarket appealed to the Grand Chamber. A majority held that there had been no infringement of Article 8 in relation to privacy. The Spanish courts were entitled to hold the intrusion to be proportionate and the dismissals of the employees to be fair in order to catch the thieves.

General matters to consider when dealing with “covert recordings” in the workplace

For employers:
  • Carefully consider whether you wish to define covert recording in your contractual terms and staff handbook as a disciplinary offence.
  • Remind employees that they must not record meetings without consent. Consider updating your policies and procedures to reflect this.
  • You could implement a policy to tape record appropriate meetings (e.g. disciplinary meetings) to ensure accurate records are kept. However, you should weigh this against the potential data protection implications. Further, obtain appropriate consent from all parties first.
  • Have you told the employee not to record, but they have continued? Is the nature of the material recorded highly confidential or personal to the business or to others?
  • Employers considering carrying out CCTV or audio monitoring should seek legal advice before doing so. You should also maintain strict policies on monitoring activities. You should only carry out covert video surveillance in exceptional and legally proscribed circumstances; where there is no less intrusive method of tackling a legitimate interest.
For employees:
  • Remember that making a covert recording may result in your employer taking disciplinary action against you if the recording is in breach of agreed policies/contract.
  • Covert recordings can potentially have data protection implications. You therefore risk action by the Information Commissioner if you breach the rights of others and/or the Data Protection Act 2018.
  • In certain circumstances, such as alleged victimisation, the tribunal may regard an employee’s covert recording as a “protected act”. Therefore, an Employment Tribunal may regard the act as a legitimate protection of a person’s legal entitlements.

Our employment team can assist you with any concerns about covert recordings in the workplace. Call us today for a FREE initial discussion on 0800 988 7756.