A decision by the EAT in Phoenix House Ltd v Stockman UKEAT/0284/17 (No.2) suggests that the tribunal will not deem this to be undermining the relationship of trust and confidence between an employer and employee.
In this case, the EAT has dismissed an employer’s argument that an employee’s basic award and compensatory award should have been reduced because she had secretly recorded a meeting with an HR representative.
What is most interesting about this case is that they could not say that the covert recording of a meeting by an employee necessarily undermines the relationship of mutual trust and confidence.
Such recordings might take place for a variety of reasons:
- to keep a record;
- to protect the employee from a risk of misrepresentation; or
- to enable the employee to obtain legal advice.
In this case, the tribunal found that the employee had not recorded the meeting with the intention of entrapment. She had recorded only one HR meeting that was regarding her own position and the meeting did not contain confidential business information.
If employers would like to explicitly state that covertly recording a meeting would amount to gross misconduct, then this should be stated within a policy.