The claimant had been employed by the respondent for 12 years. He was disciplined and received a Final Written Warning for falsifying reports of a work incident and contravening health and safety policy. It was clear that there was discord between the claimant and his manager and he decided to covertly record a conversation between the two in relation to annual leave.

The claimant was eventually dismissed for the covert recording but the respondent also took into account the Final Written Warning. The respondent had conducted a painstaking and careful investigation into the circumstances surrounding the covert recording and interviewed the claimant and his manager on a number of occasions. It considered that the covert recording amounted to ‘gross misconduct’ but had not included such conduct in its own internal policies.

The tribunal, however, accepted that such specific conduct may understandably not be contained in such policies particularly with ‘new phenomena’ involving mobile phones. The tribunal held that the recording itself did not amount to gross misconduct but considered that alongside the final written warning a reasonable employer acting reasonably was entitled to dismiss the claimant.

Practical Lessons

The tribunal was acutely aware that privacy issues were potentially engaged in this case, but did point out that there is a lack of authoritative case law on the point. Nevertheless, the tribunal felt that the respondent had somewhat overreacted in considering the claimant’s conduct in secretly recording a conversation as a “gross invasion of privacy”. It noted that no criminal offence had been committed and in a rather tongue-in-cheek manner quipped that this was hardly a ‘Wikileaks’ style operation: "This had been a sneaky and underhanded recording of an entirely work-related conversation in a work-related setting.  Private life, family life and the European Convention had not been engaged."

Awarding compensation for 12 weeks' notice, the tribunal concluded, "In the present case there had been significant misconduct.  The covert recording had clearly been wrong.  However the respondent had regarded it in somewhat overblown terms; as a gross breach of privacy and a potential criminal offence.  It had been neither.  Even coupled with the final written warning, the decision of the tribunal is that the contract of employment had not been repudiated by the claimant.  It had not been gross misconduct.  It justified dismissal but not dismissal without notice."

Employers would be advised to not rashly treat such underhand operations as automatically amounting to gross misconduct and are likely to be in a stronger position if they can cite such conduct as one of various reasons for dismissal as opposed to the sole one.

Interestingly, the tribunal advised the respondent to update its policies and disciplinary procedures to reflect technological advances and it would do no harm for all employers to do likewise and consider how they might deal with such scenarios in the future.