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No place for covert recordings in the workplace

In this day and age any employee with a smart phone will have the ability to record any conversation that takes place in the workplace. However, this does not mean they have the right to.

The Employment Appeal Tribunal (EAT) has recognised the ease with which meetings can be covertly recorded by employees and that covert recordings of meetings can amount to an act of misconduct.

This issue was addressed again recently by the Employment Tribunal (ET) in the case of Tan v Copthorne Hotels Limited. Here, the employee brought various speculative claims of discrimination, whistleblowing and unlawful deduction from wages after being placed at risk of redundancy.

Following a seven-day hearing, the ET ruled in favour of the Respondent and dismissed the Claimant’s claims.

One of the issues that came to light at the hearing was that, during his employment, the Claimant had covertly recorded thousands of hours of conversations and meetings with colleagues. He told the ET he did this whenever he felt threatened.

This behaviour should be distinguished from that of an employee who, as a one-off act, covertly records a disciplinary meeting because it had taken place over a significant period and clearly formed part of a wider plan.

As a result, the ET found that this behaviour was ‘duplicitous’, and that the Claimant acted in a way that undermined the trust and confidence between himself and his employer.

Had the ET not found the Claimant’s dismissal to have been fair, the employment judge said the employer would have been justified in dismissing the Claimant as soon as it discovered he had been making these covert recordings.

But this case is remarkable for another reason as the Claimant was ordered to pay costs totalling £430,000, one of the largest orders that has ever been ordered by the ET.

This judgment is a useful reminder to employers that covert recordings of meetings made by employees can be considered an act of misconduct so significant that it could justify dismissal.

It is also a stark warning to employees that they should not behave in a manner that undermines the duty of trust and confidence they owe their employer and they are not free to covertly record their colleagues just because they feel like it.

If you have any questions about covert recording in the workplace, please email or call our Employment Law team today on 0113 207 0000.

 

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Paul Kelly

Partner and Head of Employment
Employment Law
PKelly@LawBlacks.com
0113 227 9249
@PaulLawBlacks
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Paul Kelly Blacks Solicitors LLP