The claimant was a financial accountant for a charity called Phoenix House. She claimed that she was being improperly treated by her company during a large restructuring. Whilst she was discussing these issues with HR, the claimant decided to covertly record the meeting.
As she was in the process of her successful unfair dismissal claim, she disclosed the fact that she had covertly recorded the meeting with HR. Phoenix House then argued over the compensation she was awarded, they believe it should be reduced due to her misconduct prior to her dismissal and the fact that, had they known about the covert recording they would have fairly dismissed for gross misconduct.
The ET did find that a 10% reduction should be applied on the basis that there was a possibility that Phoenix House could have dismissed fairly had it been aware of the recording. However, it kept the percentage low highlighting, in particular, that the recording was not made to entrap the employer and that the employer’s disciplinary policy did not contain reference to covert recording as an act of misconduct. Phoenix House appealed arguing, in particular, that the covert recording was a breach of trust and confidence.
The EAT observed how easy it is to be able to covertly record meetings and that doing so doesn’t mean it was done with malicious intent; it may have been done to protect the claimant’s word from being misinterpreted if faced with a further investigation.
The EAT did not feel that covert recording would necessarily undermine trust and confidence but did say it considered it “good employment practice for an employee or an employer to say if there is any intention to record a meeting save in the most pressing of circumstances; and it will generally amount to misconduct not to do so.”
Estelle Born
Paralegal, Clarkslegal LLP