Is it misconduct for an employee to digitally record a disciplinary hearing without the employer’s knowledge? This is of course a byproduct of what is likely to be a much more frequently uttered question arising from an employer’s realisation that a dismissed employee has a recording of a fragment of a discussion in a disciplinary hearing that ‘is forgotten about’ when it comes to recording the written notes of the meeting in the form of ‘crap! this recording undercuts our case about the real reason for dismissal. Can we convince the employment tribunal to refuse to admit this as evidence?’ The answer it as it has developed in cases such as Fleming v East of England Ambulance Service NHS Trust is sometimes, sometimes not.
However, the recent decision of the Employment Appeal Tribunal in Phoenix House Limited v Stockman introduces a interesting and slightly different aspect of the issue. The claimant had made a grievance to her employer and the employer considered that grievance to be disruptive and dismissed the claimant for ‘some other substantial reason’ , namely a breakdown of trust and confidence. Unsurprisingly, the employment tribunal found that the dismissal was unfair. However, it transpired that before the decision to dismiss was made the claimant had, without the employer’s knowledge, covertly recorded the formal meeting which, when they found out about it, they considered to be ‘misconduct’.
That fact, even if it was indeed ‘misconduct’ was irrelevant to the question of whether the claimant had been unfairly dismissed because it was not in the mind of the employer as a reason when the dismissal was communicated. However, the employer did go on to argue that when it came to the compensation that should be awarded for the unfair dismissal the tribunal should take the ‘misconduct’ into account and award no compensation at all. In the event the tribunal did reduce the award by 10%, and not the 100% the employer sought on the basis that this was a just and equitable reduction. The tribunal did nonetheless express the view that there is no basis for the view that a recording will always be misconduct but that it often would be:
we consider that it is good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so.
Recording a disciplinary hearing or investigation interview would once have been an onerous task (thing twin cassette tape reorders) and give the appearance of an imposing situation. The fact that this has become a recurrent theme in employment law is indicative that this is less the case, with smartphone and mobile recording devices being commonplace and un-obstructive. Just a few months ago union member approached me with his plan to record an upcoming formal meeting and asked my advice. I advised strongly against that but it did lead me to question why that should be the case.
It seems to me that a change in standard practice that moved away from viewing the taking and simultaneous sharing to both parties of an accurate record of an interview as somehow being unusual or misconduct to being the norm would solve many a post-interview disputes as to the accuracy of ‘notes’ of a meeting; if nothing else such a recording would in the vast majority of cases resolve precisely those disputes. And, far from being a pro-employee move (although it would make managers more careful to conduct proceedings professionally – which is surely no bad thing) I can think of a few cases where such a clear record would have been of benefit to employers (such as those cases where an employee shoots themselves in the foot with their testimony).
In my experience having accompanied and assisted members with both digitally recorded and unrecorded records followed up with notes I have not come away with a feeling that recordings interviews gives an employee an particular advantage, but I have found a greater degree of professionalism in the conduct of both parties and a marked decrease in the disputes over evidence of what was and was not admitted and alleged in those meetings.
It seems to me that alongside providing a note of the meeting (the accuracy of which range widely between the impeccable, garbled and confused and the downright deceptive) the ACAS Code could quite reasonable recommend that if an employee agrees then a disciplinary hearing and investigation meeting can be recorded with a copy provided to the employee at the close of the meeting.