Sat 15 Mar 2014

Covert surveillance: secret recordings in the workplace

I've previously blogged on the decisions of the Employment Appeals Tribunal (EAT) relating to covert surveillance. Firstly, in Vaughan v London Borough of Lewisham it was held that an employee can use covert recordings in evidence in the Employment Tribunal. Secondly, in City and County of Swansea v Gayle, it was held that an employer's use of covert video recordings in a misconduct investigation did not make the squash playing employee's dismissal unfair.

The use of covert recordings has since been considered further: by the Employment Tribunal in the case against Michelle Mone's company, MJM International, and by the EAT in Punjab National Bank v Gosain.

MJM International

In the case against MJM International, a former director was found to have been unfairly dismissed when he quit after discovering his office had been bugged with a listening device in a vase of artificial flowers. The company argued the device had been used for "business strategic reasons" due to concerns over the employee's loyalty to the firm.

The Tribunal held that the use of the device was "conduct likely to destroy or seriously damage the degree of trust and confidence an employee is entitled to have in his employer" and awarded the employee compensation for loss of earnings of £15,920.

Punjab National Bank v Gosain

In Punjab National Bank v Gosain an employee hid a tape recorder during grievance and disciplinary hearings and captured "highly inappropriate" comments made about her by her employer when she was not present. However, these comments did not relate to the matters to be considered by her employer at the hearings.

The EAT held that when a Tribunal decides whether evidence is admissible they need to balance the general rule that relevant evidence is admissible, against the need to ensure the confidentiality of an employer's private deliberations in the internal grievance/disciplinary process. As the information recorded did not actually form part of the employer's decision making it was admissible.

The tribunal's position on covert recordings

So, to give you a summary of the current position, covert recordings made by employees are potentially admissible as evidence (although they won't be if they are a recording purely of the private deliberations of an employer during a grievance/disciplinary hearing). As Mr Justice Underhill said in the case of Vaughan:-

"The law is now established that covert recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable."

With regard to covert recordings made by an employer the position depends on the facts of each case. In City and County of Swansea v Gayle the use of covert recordings did not mean the dismissal of an employee was unfair. Although in that case the EAT was influenced by the fact that the employee was recorded in a public place, during work hours, and was defrauding his employer by accepting payment for work he was not doing. On the other hand in the case involving Michelle Mone's company, MJM International, the employer were held to have materially breached the employee's contract by secretly recording him. The Tribunal seem to have taken the view that there were other steps that the employer could have taken to protect their business interests but that a secret recording device went too far.

Given the number of people now carrying phones with a recording function employers should ensure that good practice is followed at all times so that any covert recording that might be made will not show them in a bad light. It may also be worth moving to a different room when carrying out deliberations, just in case. Oh, and watch out for the employee who says, "I'll just leave my bag here"!

You can always find Innes on Google+ and Twitter or connect with him on LinkedIn.

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