In the 2019 case of Phoenix House v Stockman it was held that an employee’s covert recording of a disciplinary meeting with her employer did not amount to gross misconduct. In light of that, we suggest that the following procedure is adopted for disciplinary meetings with staff.
- Draw up a policy. Set out clearly that covert recordings in the workplace, both generally and in internal meetings, are banned. List covert recording as an example of gross misconduct in the employment contract or the disciplinary policy.
- Raise the issue directly with employees. Require managers to tackle the issue of recordings at the start of any internal meeting that may be recorded, particularly disciplinary or grievance meetings. They should ask the employee if they are recording the meeting and make it clear that such recording is not allowed. If an employee states that they are recording a meeting for their own purposes, then managers should discuss how to address their concerns (for example by agreeing to send a summary note of the meeting afterwards). Asking people not to make a recording is usually a lawful instruction.
- Tell employees to switch off all recording devices. Managers should ask employees to turn off phones during particularly sensitive meetings to reduce the risk of a recording being made. If an employee resorts to other methods to obtain a recording, this will be far more significant and show more premeditation than a spontaneous decision to record on their phone.
- Minimise the risk of private discussions being recorded. If, for example, discussions continue when an employee has left the room, even for a short time, managers should ask them to take their personal belongings with them to reduce the likelihood of them covertly recording the private discussions. These discussions are when there is more risk of damaging comments being made. As case law has shown, recordings of these will not necessarily be excluded as evidence.
- Train managers. Ensure that managers holding meetings are trained and prepared. It is increasingly likely that an employee will make covert recordings at some point. The damage that these recordings can cause will be minimised if managers remain professional and aware of what they can and cannot say. A script is often useful to ensure managers stay on message throughout the meeting. To address any concerns about the content of the script being disclosable, this could be prepared in the form of privileged legal advice.
For advice on this or any other area of Employment Law, why not contact one of Alexander JLO’s expert employment lawyers and see what we can do for you?