Covert recordings as evidence against unfair dismissal
In assessing compensation for unfair dismissal, a tribunal can reduce both the compensatory and basic awards, in some cases to zero, based on the employee’s conduct before dismissal. A tribunal may admit evidence from recordings of meetings that have been made covertly by an employee if the tribunal thinks it is relevant. However, covertly recording a meeting can amount to misconduct.
In Phoenix House v Stockman, the employee covertly recorded a meeting with HR about a proposed restructure. In the unfair dismissal claim, the tribunal accepted that the employee had recorded the meeting because she felt flustered and that she hadn’t done so with the intention of entrapping her employer. The tribunal reduced her compensatory award by 10% because of her conduct. The employer appealed. It said that the covert recording was a breach of trust and confidence and, had it known about the covert recording at the time, the employee would have been dismissed for gross misconduct. On this basis the employer argued that her compensation should be reduced to zero.
The EAT upheld the tribunal’s decision. Whilst covertly recording a meeting might usually amount to misconduct (save in exceptional circumstances), it won’t always amount to gross misconduct. In this case, the employer’s disciplinary rules did not list covert recording as a gross misconduct offence. Furthermore, a covert recording doesn’t necessarily undermine trust and confidence. An employee may for example merely be recording the meeting to assist with their own record keeping or with getting legal advice. The tribunal was entitled to reduce compensation by only 10%. The tribunal had correctly assessed the chances of the employee being fairly dismissed had the employer known about the situation.
This case gives employers helpful guidance on covert recordings. Employers may wish to include making covert recordings of meetings in their disciplinary policy as a specific example of gross misconduct.
For advice on how to include this or for a review of your existing disciplinary policy, please contact Andrew West on 01473 298102 or email [email protected].
