Covert Recordings at Work

Implications from the Employment Tribunal

In the event of a termination of employment employers cannot rely on the Employment Tribunal (ET), taking the moral high ground by prohibiting the use of a covert recording in the ET. The ET has the discretion to determine whether such a recording can be admitted as evidence.

Below is a summary of cases where the ET has permitted the use of covert recording in evidence.

In Punjab National Bank v Gosain² the Claimant lodged a tribunal claim alleging sexual harassment, sex discrimination and constructive unfair dismissal. Prior to her resignation the Claimant attended a grievance and a disciplinary hearing. She recorded both “public” and “private” conversations in those hearings. The Respondent objected to the policy  which   states  that   covert   recording  is  not admissibility of the private contents of those recordings when disclosed. At a preliminary hearing the Judge ruled that the recordings were admissible at trial. The fact that the recordings were made covertly was not, in itself, a ground for ruling them inadmissible.

In Phoenix House v Stockman³, the Claimant disclosed during her successful unfair dismissal claim, that she had recorded a meeting with the Director of Resources without informing the Respondent. The Respondent argued that the compensation awarded to the Claimant for unfair dismissal should be reduced on ‘just and equitable’ grounds, had they been aware of the covert recording, they would have dismissed her for gross misconduct in respect of that act. The ET referred to the employer’s disciplinary policy and ruled that:

• Phoenix had no policy stating that staff could not record meetings
• The policy did not advise that covert recordings amounted to a disciplinary offence

The ET stated the employee’s reasons for making a recording was relevant when considering whether the act amounted to gross misconduct, the Claimant was not using it to deceive her employer. Therefore, this could not be considered gross misconduct. A vulnerable employee seeking to guard against misrepresentation is very different from a highly manipulative employee seeking to entrap their employer.

The EAT agreed with this judgment. In this case, the nature of the recording was deemed too important to ignore, despite the employer contending that her compensation should be reduced to reflect her pre- dismissal conduct in making the recording.

The situation will generally be viewed differently where there is wrongdoing by the employee. In the case of Lopez Ribalda v Spain ⁴ the European Court of Human Rights (ECtHR) held that Spanish shop workers’ right to privacy was not violated when a supermarket secretly installed hidden cameras to monitor employee thefts.

The supermarket caught Ms Ribalda and her colleagues on camera stealing items, resulting in five co-workers being dismissed. They made claims for unfair dismissal and alleged a breached of their right to privacy under Article 8 of the European Convention on Human Rights.

The Spanish Tribunal and High Court held that the employer had obtained the video surveillance lawfully with the legitimate appropriate aim of detecting theft. On appeal by the employees the ECHR considered that the covert surveillance was not justified as the employees had a reasonable expectation of privacy in the workplace, relying on human rights legislation.

The supermarket appealed to the Grand Chamber. It was held that there had been no infringement of Article 8 in relation to privacy. The intrusion was proportionate and the dismissals fair in order to catch the thieves.

In the case of Mr C H Tan v Copthorne Hotels Ltd,⁵ the ET awarded a six figure costs award when a claimant made covert recordings and sought to wrongly implicate colleagues with WhatsApp messages to support his employment tribunal claim. He had covertly recorded hundreds of hours of meetings and private conversations with colleagues, the ET described them as “deceitful” and “duplicitous”. When he was unsuccessful with his claims an award of costs was made against him for £432,000, one of the largest awards ever by an ET.

Further Recommendations

Employers need to ensure that where recordings are taking place the staff are aware it is happening. Accordingly, employers should:

• Ensure that they have a policy which is clear and well circulated
• At the start of every meeting refer to the policy
• Ensure there is a note taker
• During breaks for deliberation retire to a different room
• Maintain appropriate conduct and comments throughout the meeting and during any intervals
• Both parties to agree the written notes taken at the end of the meeting

Further Information

We have advised a number of schools on Covert Recordings at Work and can guide you through the process. For further information on Covert Recordings at Work, please contact Andrea Squires, Partner on 020-7593-5039 or asquires@wslaw.co.uk. For more general advice, please contact a member of our School HR team on 0345-026-8690 or schoolsHR@wslaw.co.uk.

1. ^{[2017] ECHR 742}
2. ^{UKEAT/0003/14/SM}
3. ^{UKEAT/0264/15/DM}
4. ^{López Ribalda and others v Spain [2020] IRLR 60 ECHR}
5. ^{ET 2200986/2017}