Covert recordings at work – misconduct?

A recent case in the Employment Appeal Tribunal (EAT) has highlighted that employees who make covert recordings at work can be guilty of misconduct.

The Claimant in this case brought a claim of unfair dismissal, which was successful. During the proceedings, she disclosed a recording that she had made covertly during her employment. The Respondent appealed against the award of compensation, arguing that it should be reduced because the covert recording amounted to pre-dismissal misconduct.

The EAT dismissed the appeal, finding that the Employment Tribunal had made the correct decision regarding the reduction, but it made some very interesting general comments about covert recordings.

It recognised that covert recordings could be made for a wide variety of reasons, not all of which are intended to entrap an employer, or to gain a dishonest advantage. For example, an employee may be simply trying to protect themselves from misrepresentation. Therefore, a Tribunal is not bound to find that all covert recordings are a breach of the relationship of trust and confidence, and it will depend on the factual circumstances in each case. Factors to be taken into account include the purpose of the recording, the blameworthiness of the employee and the nature of what has been recorded.

The EAT also said that any evidence of the attitude of an employer to covert recordings would be relevant when considering whether or not it amounted to a breach of trust and confidence. It commented that it appeared to be “relatively rare” for covert recordings to be listed as examples of gross misconduct in disciplinary procedures.

In light of this decision, it would be sensible for disciplinary procedures to be amended to expressly include covert recordings as examples of gross misconduct. It would also be sensible for employers to state at the start of meetings that employees are not permitted to record the meeting, and that any attempt to do this covertly may be regarded as gross misconduct. Please contact us if you would like to have your procedures reviewed.

Kirsty Alleyne, Senior Solicitor 

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