The Employment Appeal Tribunal (EAT) has clarified when an employee making a covert recording at work may be guilty of misconduct. In a recent case, the Claimant worked as an accountant for a charity. She complained of unfair treatment and harassment by the director of finance during a restructuring process. She also believed that there was no genuine reason for the restructure of the finance department where she worked. She covertly recorded a meeting that took place between her and the head of human resources. Following a period of sickness absence which she attributed to the harassment she had suffered, the Claimant said she intended to return to work and would put the disagreement with the finance director behind her. However, the charity concluded that the relationship had broken down irretrievably and dismissed the Claimant on this basis.
The Claimant claimed that the dismissal was unfair. The employment tribunal agreed, finding that the charity’s belief that there had been an irretrievable breakdown in the employment relationship, given the Claimant’s willingness to put the dispute behind her, was unreasonable and that the disciplinary process followed was also unfair. The charity was not aware the covert recording had been made until her successful unfair dismissal claim.
A tribunal may reduce an award where the conduct of the employee before the dismissal is such that it would be just and equitable to do so. In assessing compensation the tribunal is entitled to have regard to misconduct discovered after the end of the employment relationship and reduce any compensation amount on a “just and equitable” basis. The employment tribunal had reduced the compensatory award by 10% to reflect the circumstances relating to the covert recordings and the low percentage chance that the employer would have fairly dismissed the Claimant had it known of the covert recordings. The charity appealed the compensation award, arguing that the award should be further reduced to reflect the Claimant’s misconduct in making the covert recording, which amounted to a fundamental breach of trust and confidence and for which the charity would have dismissed on the grounds of gross misconduct.
The EAT found that whilst it was good employment practice for an employee or employer to say if there is any intention to record a meeting (save in the most pressing of circumstances) and that it would generally amount to misconduct not to do so, this was not always the case. The EAT commented that such a recording is not necessarily undertaken to entrap an employer or gain a dishonest advantage. It may have been done to keep a record, or protect the employee from any risk of being misrepresented when faced with an accusation or a disciplinary investigation. In other cases, the covert recording may be made to enable the employee to create a record from which to obtain advice from a union or elsewhere. An employment tribunal is always required to make an assessment of the circumstances.
The EAT found that the employment tribunal was entitled to find that the Claimant had not recorded the meeting with the intention of entrapping the employer. For example, there were no questions asked by the Claimant that gave the impression of being made in order to obtain a favourable position i.e. to “entrap” the employer. There was no evidence that there had been a breach of trust and confidence. In this case, the Claimant recorded a single meeting concerned with her own position rather than the confidential information of the business or other individuals.
It is interesting to note that, the making of a covert recording was not set out specifically in the charity’s disciplinary policy as amounting to gross misconduct and the charity had not, even at the date of the EAT remedy hearing, amended its policy to include this in light of the tribunal proceedings. However, even if they had done so, a tribunal will always look further than the wording of a disciplinary policy and consider whether or not an action amounts to gross misconduct in each individual case, when considered in the context of the relevant surrounding circumstances. Employers that wish to treat the making of covert recordings as gross misconduct should include this in their disciplinary policy, bearing in mind always that whether or not an action or omission amounts to gross misconduct in each case always depends on the individual circumstances. Legal advice should be sought in the first instance where dismissal is contemplated.
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