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January 11, 2017

Covert Recordings, Protected Disclosures and Unfair Dismissal

Recently, one of Albion Chambers’ employment team members, Alec Small, was asked to advise in a complicated matter concerning an employee’s allegation that they had been unfairly dismissed following the making of protected disclosures.

A little background…

The background was this: an employee under investigation felt targeted and victimised in his workplace. They felt that they, and others, were being bullied by managers and other employees. They also felt that standards were falling and that corners were being cut as budgets were reduced. The employee was dismissed by their employer for Gross Misconduct, following an investigation into their work practices. Whereas the investigation began by considering queries from other employees that the employee may have been pursuing private work in competition with his employer, the focus soon turned following the discovery of emails containing confidential business information forwarded by the employee to their personal email address.

The employee later alleged that complaints they had made of bullying, harassment and falling standards amounted to protected disclosures to the effect that legal obligations had been breached and that the health and safety of individuals had been endangered. This allegation was raised late in the disciplinary process and no specific disclosures were referred to. It was at this late stage however, that the employee revealed to their employers that they had, in fact, covertly recorded all of the conversations they had had with their managers over several years. Hundreds of hours of covert recordings had been made and subsequently transcribed by the employee.

Double-Edged Swords

The case was an interesting example of the double-edged nature of covert recordings. While it was likely that these transcripts would be admissible before a tribunal following the principles in Vaughan v London Borough of Lewisham UKEAT/0534/12/SM (the difference between that case and the present case being that the employee had provided transcripts of the recordings and would likely provide the original recordings to enable them to be checked for accuracy). Nevertheless, because the transcripts could show exactly what was said during these meetings it was possible to undertake a full analysis, line by line, of what disclosures the employee had made to their employers, enabling a careful scrutiny looking at whether the statements made amounted to disclosures for the purposes of the ERA 1996.

The other side of the sword however, was the fact that in themselves, these recordings reflected the “very distasteful” practice highlighted by the EAT in Vaughan as well as a potential breach of the employer’s confidentiality policies, some of the transcripts having included confidential data-subject information. Furthermore, none of the managers were aware that their conversations had been recorded. Therefore, the evidence in the case which could have been most beneficial to the claimant’s claim may also be the greatest barrier to success as the very making of the recording could amount to a fundamental breach of the relationship of trust and confidence.

A Balancing Exercise

In cases like this there is a careful balancing exercise to undertake. The value of the evidence must be weighed against the negative impact of their having been made at all, such as findings of contributory fault, Polkey or a reduction in any final compensatory awards.

Lessons Learnt

The lesson here for employers is to have clear policies prohibiting covert recording by employees. In this way, if they are presented with such evidence used against them, they can rely on their policy to add weight to an argument for contributory fault, Polkey or equitable reduction.

On the other hand, the lesson for employees is that if they do feel forced by their circumstances to make such recordings, then they need to be sure that what is being recorded is worth running the gauntlet for. It is possible that only particularly damning covertly obtained evidence would be capable of outweighing the prejudice of recording it.

Alec Small