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Can an employee's actions in covertly recording a HR meeting reduce any subsequent Tribunal award?

02 September 2019
Business meeting behind glass
In the case of Phoenix House Ltd v Stockman UKEAT/0284/17/00 (No.2), the Employment Appeal Tribunal ("EAT") has considered the changes in technology and the ease by which an employee may covertly record meetings with his or her employer. 

Background

Ms Stockman was employed by Phoenix House Limited in the role of Financial Accountant from 29 March 2010 to 28 November 2013 when she was dismissed.

In 2013, Ms Stockman's manager proposed a restructuring of the Finance Department which involved the removal of some posts, including that of the Claimant, along with the creation of others. During consultation, Ms Stockman made a number of proposals to avoid her post being removed, all which were rejected. Ms Stockman subsequently applied for an alternative post as a payroll officer and was successful, accepting the offer on 22 May 2013.

On 23 May 2013, Ms Stockman raised a complaint to her manager regarding the Finance Director, Mr Lambis, alleging that the restructuring process was biased against her and she was being treated differently to her colleagues. A colleague of Ms Stockman's confirmed that Mr Lambis on occasions did not communicate with Ms Stockman.

When issues were raised with Mr Lambis, a meeting was arranged between the manager, Mr Lambis and the colleague who had supported Ms Stockman. This meeting was amicable between the parties. When Ms Stockman became aware of the meeting, she burst into the meeting demanding to know what was being discussed and refused to leave when asked to do so.

Ms Stockman made a complaint to HR regarding the meeting and was informed HR would investigate and meet with Ms Stockman at 3:30pm that day. At that meeting Ms Stockman covertly recorded the discussion between her and HR, where she was informed that her actions in interrupting the meeting that day would be the subject of disciplinary action.

On 30 May Ms Stockman raised a grievance which was alleged to contain a protected disclosure. Amongst other things, Ms Stockman raised concerns that she had not been provided with a safe place or system of work and that she had been unlawfully harassed by Mr Lambis, although there was no precise detail of such allegations against Mr Lambis. HR made arrangements to consider the disciplinary and grievance matters together.

In June 2013, Ms Stockman went on sick leave and would not disclose details regarding her state of health.

On 16 August 2013, the meeting to consider the disciplinary and grievance matters proceeded in Ms Stockman's absence, where the disciplinary allegations against her were held to be well-founded and she was issued with a 12 month written warning. The grievance was adjourned for further investigation butwas subsequently rejected in writing on 28 August 2013.

Ms Stockman appealed against the disciplinary sanction and the decision to reject her grievance.

On 6 September 2013, Ms Stockman informed her employer that she wished to return to work, however she was placed on authorised leave until the conclusion of the appeals (which were subsequently rejected via letter on 23 and 24 September 2013).

Ms Stockman remained off work pending mediation between her and Mr Lambis, which was unsucessful.

On 25 November 2013, HR wrote to Ms Stockman inviting her to a meeting 28 November 2013.

Ms Stockman outlined at the meeting that she wished to return to work and put the grievance matter behind her, as she believed that she and Mr Lambis could work together in a professional manner. Ms Stockman reflected that although she still felt the restructuring process had been a sham, she thought the alternative role of payroll officer would be less stressful for her and she was willing to put it all behind her.

However, HR did not accept this and concluded that the relationship between Ms Stockman and Phoneix House Limited had irretrievably broken down despite Ms Stockman's assertion that she could put it all behind her. As a result, Ms Stockman was dimissed with immediate effect.

Ms Stockman's subsequent appeal against her dismissal was rejected on 10 January 2014.

Ms Stockman made a complaint to the Employment Tribunal for unfair dismissal (including unfair dismissal on the basis of having made a protected disclosure), race discrimination and victimisation and breach of contract.

 

Employment Tribunal

By a reserved Judgment dated 24 April 2015, the ET upheld Ms Stockman's complaints of unfair dismissal, whistleblowing detriment and victimisation regarding two specific allegations of detriment.

Phoenix House Limited appealed to the Employment Appeal Tribunal in respect of the finding regarding the two specific allegations of detriment which was subsequently heard on 17 May 2016. The EAT allowed the appeal and remitted the matter back to the ET.

In April 2017 the ET upheld its previous decision in part, finding that the letter dated 25 November 2013 amounted to a detriment for whistleblowing and victimisation purposes.

Ms Stockman was awarded a compensatory award of £9,709 and injury to feelings of £5,110, taking into account a 30% reduction (including a 10% reduction for conduct in respect of covert recording).

In addition to the detriment matters, Phoenix House Limited appealed in respect of the remedy judgment on the basis the ET had erred in law. Upon discovering during the ET proceedings that Ms Stockman had made a covert recording of the HR meeting, Phoenix House Limited argued this amounted to a breach of trust and confidence and her award should be adequately reduced further (possibly to nil) to reflect this.

 

EAT

It was highlighted at the EAT that Phoenix House Limited were unaware of the covert recording at the time it took the decision to dismiss Ms Stockman. However, Phoenix House Limited had argued at the remedy hearing that had it known about the covert recording it would have dismissed Ms Stockman for gross misconduct. As such, any award made to her should be reduced under the prinicples of sections 122(2) and 123(1) of the Employment Rights Act 1996 and on the basis it was not just and equitable.

The EAT accepted that Ms Stockman did not make the recording for the purpose of "entrapment" and she did not make any use of the recording for the purpose of any internal process. Furthermore, there was no such mention of such recordings amounting to a gross misconduct offence.

The EAT commented that previously, it was much more difficult for an employee to covertly record meetings which would at that time lend weight to a finding that going to such trouble would indicate a purpose of entrapment or to gain an unfair advantage. However, in light of changing technology and the ease by which employees are able to covertly record, it is now not uncommon to find an employee has recorded a meeting without prior disclosure of such fact, although this would usually be a misconduct offence rather than gross misconduct in most circumstances.

As such, the ET were not bound to find that a breach of the implied term of trust and confidence had occurred; the ET were entitled to make an assessment of the circumstances as a whole and as such had not erred in law or reached a perverse decision.

 

Comment

From the above case, it is clear that it is the purpose of the recording which is relevant, not the fact that the recording is made. There may be situations where taking a recording covertly is justified although it will always be good employment practice that parties disclose the facts of such recording beforehand. Employers should however exercise caution before treating the fact that a recording has been made as grounds for dismissal or reduction of a Tribunal award.

 

by Roxanne Buckley

Further Reading