Information presented at Employment Tribunal questions the seriousness of covertly recording in formal meetings.
The claimant was employed as a Financial Accountant, during her employment there was a full restructure which resulted in her role being removed. Following the restructure, the claimant was placed into a more junior role among the many she applied for. She felt that the Finance Director had treated her unfairly in the recruitment process and raised a grievance in respect of this. During the meeting there was an inappropriate outburst and as such disciplinary proceedings were brought against her which would run alongside the grievance proceedings. Later on that day she attended a meeting and subsequently recorded the meeting covertly (this was only uncovered at the Employment Tribunal).
As a result of the restructure and events that followed the claimant went on sick leave; both the grievance and disciplinary hearings went ahead in her absence, this resulted in a written warning and her grievance not being upheld. All appeals were exhausted and there was no agreement by mediation. The respondent invited the claimant to a hearing to consider the working relationship and whether it had irretrievably broken down. She notified her employer that it had not, that she believed she could work under the Finance Director and that she wished to return to work after her sick leave. The new role did not require day to day contact with the Finance Director.
At that hearing, another Director found that there was no route for her to return to work as the relationship had irretrievably broken down and that she would be dismissed for SOSR. She made a claim to the ET for unfair dismissal.
At the employment tribunal it was decided that the dismissal was unfair; they found it was not reasonable to consider that the working relationship had broken down. There were also procedural issues which was a breach of the Code such as not allowing her to adequately put her case and that she was not given the opportunity to show that the relationship was intact.
The employer appealed both the finding of unfair dismissal and the applicability of the Code.
The claimant brought a successful unfair dismissal claim. However, her compensation was reduced due to her misconduct – including in relation to the covert recording (for which a 10% reduction was applied). The employer argued before the EAT that her compensation should have been reduced to nil because making a covert recording was necessarily a breach of trust and confidence. The EAT disagreed.
This case highlights the importance of businesses policy and procedure around meetings and hearings. Following this outcome, the EAT provide guidance suggesting that secretly recording a meeting will not automatic be a breach in trust in confidence between parties and in any event the Employment tribunal will look at the reasons for the recording being made. Over all they concluded that best practice is for parties to communicate an intention to record a meeting; highlighting that it is relatively rare for recording to appear on a misconduct list for disciplinary but highlights to businesses that is something for consideration.
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