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