30 Sep 2019

Phoenix House Ltd v Stockman UKEAT/0284/17 (No 2)

Facts

Ms Stockman was employed by Phoenix House Ltd, a charity. She was dismissed without notice on the grounds that her relationship with senior management had irretrievably broken down. She brought various claims in the employment tribunal (ET), including one for unfair dismissal. Her unfair dismissal claim was upheld. During the ET hearing, it transpired that Ms Stockman had secretly recorded a meeting with HR, and the ET reduced the compensatory award by 10% to reflect her conduct. Phoenix House appealed against the decision in relation to the covert recording; if it had known about the recording, it said it would have dismissed Ms Stockman for gross misconduct so her compensation should be reduced to nil.

Decision

The Employment Appeal Tribunal (EAT) dismissed the appeal. It could not be said that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee. In deciding whether it was just and equitable to reduce an award in the light of conduct that comes to light after a dismissal, the ET has to make its own assessment. The ET was entitled to find that the recording had not been made to entrap the employer and its assessment would stand.

Comment

The EAT gave some helpful guidance and commented that it would generally amount to misconduct for an employee not to tell the employer that a recording was being made. However, it was unlikely to constitute gross misconduct. If an employer wishes to treat secret recordings as gross misconduct, this will need to be clearly stated in its disciplinary procedure.