In the recent case of Phoenix House Ltd v Stockman, which the employer had appealed, the Employment Appeal Tribunal (EAT) dismissed the employer’s argument that an employee’s compensation for unfair dismissal should be reduced to nil on account of the fact that she had secretly recorded a meeting with an HR representative.
In its guidance, the EAT stated that covert recordings may be made for a variety of reasons: to keep a record; to protect the employee from a risk of misrepresentation; or, to enable the employee to obtain legal advice. It is good practice for parties to communicate an intention to record a meeting, and it will generally amount to misconduct not to do so. But to make a covert recording will not necessarily undermine the employment relationship completely giving the other party the right to terminate the contract. In this case, the tribunal had been entitled to find that the employee had not recorded the meeting with the intention of entrapment. She had recorded a single meeting concerned with her own position rather than the confidential information of the business. There was no reason to interfere with the finding of the Employment Tribunal that the compensatory award should be reduced by 10% to reflect this conduct.
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.
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