The Employment Appeal Tribunal (EAT) has recently considered a case in which an employee made secret recordings of conversations during a disciplinary process. Following dismissal, the employee made an unfair dismissal claim and during the proceedings, it became clear that the employee had made covert recordings of conversations. The employer argued that, had it known of the recordings, it would have dismissed the claimant for gross misconduct and argued that her basic award should be reduced to nil as it was not just and equitable to make any award.
Dismissing the employer's appeal, the EAT was persuaded that the employee did not make the recording for the purpose of entrapment and did not make any use of the recordings during the internal proceedings with her employer.
The EAT accepted that now most people have mobile phones, it is easy to record a conversation and this does not automatically mean that this is done to entrap or obtain dishonest advantage.
An important point for employers to learn from the case is that the employer did not include covert recording in its disciplinary policy as an action that would amount to gross misconduct.
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