The Employment Appeal Tribunal (EAT) dismissed an employer’s argument that an employee’s basic award and compensatory award should have been reduced to nil on account of the fact that she had secretly recorded a meeting with an HR representative. As a result of the EAT’s finding, the EAT gave some guidance on the extent to which covert recordings made by employees should affect any compensation awarded by an employment tribunal for unfair dismissal.
Further, it was decided that it could not be said that the covert recording of a meeting by an employee necessarily undermines the relationship of mutual trust and confidence between an employer and an employee. It was noted that such recordings may take place for a variety of reasons including:
- to keep a record;
- to protect the employee from a risk of misrepresentation; or
- to enable the employee to obtain legal advice.
However, it was noted that it is good practice for parties to communicate an intention to record a meeting, and it would generally amount to misconduct not to do so. In this case, the tribunal had been entitled to find that the employee had not recorded the meeting with the intention of entrapment. In fact, she had recorded a single meeting concerned with her own position rather than the confidential information of the business. Therefore, there was no reason to interfere with the finding that the compensatory award should be reduced by 10% to reflect this conduct as requested by the employer.
The EAT observed that it is relatively rare for covert recording to appear on a list of examples of gross misconduct in a disciplinary procedure, but this judgment may encourage some employers to review their procedures to ensure that this is expressly stated to their employees.
If you require any further guidance or advice, please do not hesitate to contact our Employment Team.