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Be careful how you gather evidence - it could affect your claim

Spencer Shaw Solicitors

When taking a claim to an employment tribunal, it is important to have evidence that supports your claim.

It can be tempting to try all means to obtain evidence.

However, the recent case of Phoenix House v Stockman showed that it is vital to follow the correct procedures or risk damaging your case.

Phoenix House v Stockman

The claimant, Mrs Stockman, had secretly recorded a meeting with the Director of Resources at Phoenix House during a dispute. While her employer did not know about the recording, Miss Stockman was later dismissed.

An Employment Tribunal found that the dismissal was unfair, and this was not appealed.

The case came to the Employment Appeal Tribunal to decide whether Mrs Stockman’s damages should be reduced in light of the recording.

Her previous employer argued that had it known about the recording, Mrs Stockman would have been fairly dismissed for gross misconduct, and so her damages should be reduced to nil.

The Employment Appeal Tribunal upheld the decision of the original Tribunal.

In most cases, secretly recording a meeting will be misconduct.

However, secretly recording a meeting would not automatically cause such a breakdown of trust that the employee could be dismissed, and so it was for the original tribunal to decide by how much Miss Stockman’s damages should be reduced. What does this mean for individuals recording meetings?

The Employment Appeals Tribunal was clear that it is good employment practice to say if you intend to record a meeting, save in the most pressing circumstances.

The tribunal recognised that there may be ‘rare cases’ where ‘pressing circumstances’ may justify recording a meeting without permission, but in most cases recording a meeting without permission is likely to be misconduct.

Claimants who make recordings without permission are likely to see their damages reduced in line with how serious their misconduct was.

The amount by which damages are reduced will depend on a variety of circumstances including the employer's standards of behaviour, how blameworthy the individual is and the purpose of the recording.

Standards of behaviour Employers have different expectations of behaviour.

What is gross misconduct to one employer may just be frowned upon or even condoned by another, and it would be wrong to treat both cases the same.

The Tribunal acknowledged that it is relatively rare to find covert recording on a list of examples of gross misconduct, casting doubt on Phoenix House’s suggestion that they would have dismissed Mrs Stockman fairly had they known about her actions.

Whether employers will begin including this in employment contracts remains to be seen.

Blameworthiness

Some individuals may be more blameworthy than others depending upon the facts of their case, such as whether they had been explicitly told not to record a meeting, or whether they had been deceptive.

A person recording a meeting that would usually be documented and shared would be less at fault than somebody recording a highly confidential and sensitive meeting.

Judge David Richardson also noted that, in this case, Mrs Stockman “recorded a single meeting concerned with her own position,” suggesting that employees who repeatedly recorded meetings may be considered more blameworthy.

Purpose

There may be many reasons that a person would covertly record a meeting without a malicious intention.

They may simply be keeping a record, protecting themselves against future claims, or planning to get advice on the content of the recording from a third party.

Times have changed, and where once it was difficult to make secret recordings, modern smartphones have made it incredibly simple and so more widely used for various purposes.

There is a risk that a person making covert recordings will see their damages reduced by some amount, given the dim view taken of such actions.

How should I obtain evidence?

There may be “rare cases” where “pressing circumstances” may justify recording a meeting without permission, but it is hard to say yet what these may be.

Should you need to record a meeting, the tribunal is likely to be far more favourable if you ask permission first.

Instead, you should obtain access to documents that support your case following the process of disclosure.

Usually, you will need to write to the other party to request the documents you’d like access to, but if necessary, you may need to apply to the tribunal for an order to be made.

Get in touch for support with the disclosure process:

Phone: 0121 452 5130
Email: enquiries@spencershaw.co.uk
Website: www.spencershaw.co.uk/contact-us/