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Did an employee’s covert recording amount to gross misconduct?

Written by Hayley Titchner

In the case of Phoenix House and Stockman, the Employment Appeal Tribunal provided an indication of the factors to consider when assessing whether an employee’s covert recording amounted to gross misconduct.

The Facts

Mrs Stockman worked for Phoenix House (a charity) as a payroll officer. She was dismissed during a restructuring process. The reason given for her dismissal was the fact the working relationship had irretrievably broken down.

Mrs Stockman brought claims for unfair dismissal and detriments for making public interest disclosures, race discrimination, victimisation and breach of contract.

The Tribunal upheld the complaint for unfair dismissal, and dismissed the claims for race discrimination, and upheld the complaints of whistleblowing, detriment and victimisation in relation to 2 allegations.

The Tribunal awarded a basic award of £947, a compensatory award of £9,709 and an award for injury to feelings with interest of £5,110. In reaching these figures the Tribunal made an overall deduction of 20%.

During the proceedings Mrs Stockman disclosed that she had made a covert recording of a meeting she had with one of the Directors.  The Charity argued that had it been aware of the recording it would have dismissed Mrs Stockman for misconduct.

Therefore, her compensation for unfair dismissal should be reduced on ‘just and equitable’ grounds and in accordance with the Polkey principle, on the basis had the Charity acted fairly Mrs Stockman would have been dismissed in any event.

The Tribunal increased the deduction of compensation from 20% to 30% to take into account the circumstances of the covert recording.

The Charity appealed to the Employment Appeal Tribunal (EAT).

The Employment Appeal Tribunal

The Employment Appeal Tribunal dismissed the appeal. The Court noted that a covert recording may not always be done with the intention to entrap or to gain a dishonest advantage. It may have been done to allow the employee to keep a record or to protect the employee from any risk of being misrepresented, for example.

The court went on to state that whilst it is good practice for an employee or employer to say if there is any intention to record a meeting, and it will generally amount to misconduct not to do so, a tribunal is not bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. 

Consideration should be had to the following when assessing whether a covert recording breaches the trust and confidence;

  • the purpose of the recording;
  • the extent of the employee’s blameworthiness (which may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording);
  • what is recorded;
  • any evidence of the attitude of the employer to such conduct (eg whether it appears on a list of instances of gross misconduct in their disciplinary procedure).

Findings

In this case the Employment Appeal Tribunal approved the Tribunal’s finding that Mrs Stockman had not recorded the meeting to entrap her employer, there was no confidential information involved and no other people were discussed.

As a result, there had been no breach of the implied term of trust and confidence and its approach to reducing her award from 20 to 30% was a fair assessment.

It is worth also noting one of the factors of consideration is whether the action of covertly recording a meeting is specifically referred to within the employer’s disciplinary procedure; it would therefore be good practice for employers to review their policies accordingly.

Contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute professional or legal advice. Invicta Law cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

 

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