Can the Employment Tribunal reduce an award if the employee makes a covert recording?
Can making a covert recording amount to gross misconduct?
Ms Stockman, the Claimant, was a Russian national who worked for Phoenix House, the Respondent, a charity that helps people with drug and alcohol problems. Following a restructuring of the Claimant’s department, the Claimant believed she was being treated differently by the Respondent’s Director.
The Claimant then interrupted a meeting between the Director, her manager and a colleague and demanded she be told what was being discussed. The Claimant was told the meeting was private and she refused to leave.
The Claimant met with HR and was told that she should not have interrupted the meeting. She informed HR she would raise a grievance. She covertly recorded this meeting. The Claimant lodged a grievance but it was not upheld.
The Claimant was disciplined for interrupting the meeting and given a 12-month written warning. She appealed both the disciplinary and the grievance outcome but neither appeal was upheld. The Claimant and Respondent also engaged in mediation to try and resolve the issue but this did not prove successful.
The Claimant remained off work until the resolution of the matter and was invited to a meeting to investigate whether the working relationship between the Claimant and the Director was retrievable. It was held to be irretrievable and the Claimant was dismissed.
The Claimant initiated employment tribunal proceedings and the ET allowed the claim. However, it deducted 10% off the Claimant’s award for her covert recording stating that the Polkey case gave the Respondent a 10% chance of a fair reason to dismiss for a breach of trust and confidence.
The Respondent appealed, believing there was a greater than 10% probability the Claimant would have been dismissed but the EAT rejected the appeal. It noted that there was nothing in the Respondent’s handbook that stated meetings could not be recorded or that a covert recording would amount to a disciplinary offence.
The takeaway point:
Yes, a covert recording can give rise to a Polkey deduction. This deduction will vary on facts but is likely to be high if the employer states that recording covertly is against the rules and is an act of gross misconduct.
Previously it was not unusual for employees to covertly record meetings as there was no disadvantage for doing so. Following this judgment employers would be well placed to update their disciplinary procedures to include covert recordings – both digital and analogue – as a disciplinary offence amounting to gross misconduct and also to remind employees of this before any meeting.
Another option would be to record all meetings to ensure accurate records are kept but this has practical and cost implications on the disciplinary/grievance process. To have your disciplinary policy or restrictive covenants updated please contact us.