Three reasons for including 'covert recordings' in your list of behaviours likely to amount to gross misconduct

Imagine the scene. You've dismissed someone and they bring an unfair dismissal claim. During that process you find out they've secretly recorded an internal hearing. Can you use this to undermine their credibility and/or reduce the amount of compensation they might receive if they win? 

The Employment Appeals Tribunal in Phoenix House Limited v Stockman  provides some very useful guidance. 

Facts

Following a reorganisation, Ms Stockman accepted a more junior role as an alternative to being made redundant. A day later she complained about her manager who she believed had treated her differently and was biased against her. An investigation took place and during one of the meetings with HR, Ms Stockman covertly recorded the conversation. 

She didn't tell her employer she had done so and it only found out after she brought a number of claims against it in the employment tribunal.

The tribunal decided that she had been unfairly dismissed (the reasons are not relevant). It reduced her award by 10% to reflect the fact there was a 'low percentage chance' that she would have been dismissed fairly anyway because she had secretly recorded the meeting between herself and HR.

Her employers appealed. They argued that her award should be reduced to £0 because her behaviour was blameworthy and had damaged the implied relationship of trust and confidence between them. It said that it would have dismissed her for for misconduct had it known about the recording.

Decision

The EAT refused to interfere with the 10% deduction and made the following important comments:

1. Secretly recording a meeting will not automatically undermine the trust and confidence between an employer and employee giving the employer the right to dismiss, but it will, usually, amount to misconduct.
2. A tribunal should look at the reasons why it was recorded. These might range 'from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation'.
3. What is recorded is also important. There is a difference between recording disciplinary/grievance hearings - where written records will be created anyway - and those where highly confidential information about the business or others are discussed. [Previous decisions have focussed on whether covert recordings can be used in ET proceedings and have distinguished between covertly recording disciplinary hearings where the employee is present - and those recording the deliberations of the panel - where the employee is not.]

Tips

Unless you are happy to allow your staff to record hearings (and there are some benefits in doing so):

1. Make it clear in your disciplinary policy that anyone who secretly records a meeting etc is likely to be guilty of serious misconduct and may be dismissed without notice.
2. At the beginning of any investigatory, disciplinary or grievance hearing explain to the employee that you do not permit them to record the hearing and ask them to confirm they are not doing so.
3. It is sensible for the manager or panel to deliberate in a different room. If this is not possible, you should ask the employee to wait outside and make sure they remove all of their possessions.

If your employee disobeys your clear instructions and records the hearing you will be able to use this undermine their credibility and reduce any award made by a tribunal. 

Remember: Awards for unfair dismissal will be reduced or extinguished if an employee commits misconduct during their employment, even if you don't find out about it before dismissing them.

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