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Covert recordings: “For the times they are a-changing”

Almost everyone carries around with them a recording device nowadays, in the form of a smartphone or wearable technology.  Where does this leave HR managers and employers in dealing with employees who ask (or don’t ask as the case may be!) to record meetings?

The Employment Appeal Tribunal (EAT) has recently handed down its judgment in the case of Phoenix House v. Stockman.

Ms Stockman (a finance employee) had secretly recorded a meeting with HR during which she was told that she would be disciplined for having earlier interrupted a meeting about allegations she had made against her line manager. Ultimately Ms Stockman was dismissed as a result of an irretrievable breakdown in relationships.  The secret recording only came to light during her subsequent tribunal claim.

Without going into the details of the other findings of the Employment Tribunal (ET), it was found that Ms Stockman did not make the covert recording to try to entrap the company managers, but only because she felt flustered at the time. The impact of this finding was that she was still found to have been unfairly dismissed, but the ET reduced the compensatory award by 10%.

Phoenix House appealed against the ET’s approach to the covert recording of the meeting.  Its position was that, had it known about the recording, it would have dismissed Ms Stockman for gross misconduct and that she should not be entitled to any compensation on that basis.

Ultimately the EAT agreed with the ET, finding that Ms Stockman had not recorded the meeting with the intention of snaring her employer or obtaining confidential information (she had recorded a single meeting concerned about her own position) and that the tribunal had made a legitimate assessment of these facts and reduced the compensation accordingly.

The EAT made some interesting comments around covert recordings more generally.

The accessibility of a recording device being the first observation: “Times have changed … it is now not uncommon to find that an employee has recorded a meeting without saying so.” The EAT said that the reason for the recording must always be considered – this reason will not always be sinister or to gain a dishonest advantage, but will be relevant and, occasionally, justifiable. Importantly, the EAT rejected the employer’s argument that covertly recording a meeting will necessarily undermine the trust and confidence between employer and employee.

The culpability of the employee must also be considered – the EAT suggested inexperience could lead to an employee recording a discussion completely innocently? What about the content of the recording? If a note of the meeting would be shared in any event, then perhaps there isn’t (or shouldn’t be) a problem. This is contrasted with a meeting during which confidential information or information about others is disclosed.

The EAT’s concluding remarks pointed out that rarely does “covert recording” appear on a list of instances of gross misconduct in a disciplinary procedure and that this might also be pertinent. Indeed, there was no mention in the disciplinary procedure used by Phoenix House of such misconduct (even by the time the case was being heard by the ET, as pointed out by the EAT).

Going forward the EAT suggested, practically speaking, that it would be good employment practice for an employee or employer to say if there is any intention to record a meeting, save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.

Covert recordings: “For the times they are a-changing”

Disciplinary investigations: Common sense and even-handedness should prevail

In the recent Employment Tribunal (ET) case of Ball v. First Essex Bus Limited, the claimant, a 60-year-old bus driver who suffers from diabetes, has been successful in his unfair dismissal claim. He persuaded an ET that his dismissal for being under the influence of cocaine whilst on duty was both substantively and procedurally unfair. The claimant had failed a random drug test.
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Disciplinary investigations: Common sense and even-handedness should prevail

Employers can be vicariously liable for the violent conduct of their employees outside work

In Bellman v Northampton Recruitment Limited (NRL), the Court of Appeal decided that NRL was liable for its Managing Director drunkenly assaulting another employee at an "impromptu" drinks event after a work Christmas party. There was a sufficient connection between the Managing Director's employment and the assault. This is an important case for employers to be aware of in the run-up to the Christmas party season.
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Employers can be vicariously liable for the violent conduct of their employees outside work

A busy month for discrimination law

It’s been a busy few weeks for judgments; we round up the most recent discrimination cases:

When is cancer a disability?

What happens if an employer does not know an employee is pregnant when deciding to dismiss her but finds out before the dismissal takes effect?

Was forfeiture of LTIP awards unlawful age discrimination?

Click here to read the round up.

A busy month for discrimination law

Suspension for alleged misconduct may be a breach of contract

In the recent case of Agoreyo v. London Borough of Lambeth [2017] EWHC 2019 (QB), the High Court has held that suspension as a "knee-jerk" reaction to an allegation of misconduct may in itself be sufficient to breach the implied contractual term of trust and confidence.
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Suspension for alleged misconduct may be a breach of contract

Can you dismiss an employee if they have allegedly committed a criminal offence?

An American football team, the San Francisco 49ers, has dismissed its player Bruce Miller following his arrest on suspicion of assault after an altercation about a hotel room. Although both an American and sports related story, it poses an interesting question to employers in the UK … can you dismiss an employee who faces a criminal conviction?

You would first need to consider whether this behaviour was misconduct. There is no outright rule that an employer should dismiss an employee who it is alleged has committed or is found to have committed a criminal offence. The Acas Code of Practice states at paragraph 31 that “if an employee is charged with, or convicted of, a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.”

Some points an employer may want to consider include:
• the seriousness of the offence;
• whether it can leave the job open while the employee cannot work;
• whether the conviction affects the employee’s job (e.g. loss of driving licence); and
• the employee’s refusal to cooperate with the employer’s disciplinary investigations.

Employers should also consider what its employee handbook says on this topic. For example, a typical clause in the handbook may state “a criminal investigation, charge or conviction relating to conduct outside work may be treated as a disciplinary matter if we consider that it is relevant to your employment.” Therefore, the employer will need to review and consider whether an investigation or suspension would be necessary. Responding to an employee’s criminal conviction remains a grey area on which advice should be sought.

Can you dismiss an employee if they have allegedly committed a criminal offence?

Insight: UK Employment Law Round-up – August 2016

Employment Round Up THUMBNAIL In this month’s issue we consider the case of Dronsfield v. University of Reading, in particular the EAT’s observations in that case about how disciplinary investigations should be conducted and the role of HR in finalising investigatory reports and disciplinary decisions.

We also look at a recent case on the definition of “worker” for whistleblowing purposes, which established that, in some circumstances, a “worker/employer” relationship may be established between an agency worker and an end user.

We consider the “cautionary tale” of Byron Burger on how not to assist in a Home Office investigation, with a brief reminder of the risk of not carrying out appropriate “right to work” checks.

Finally, we consider what’s next for UK employment law – not just in the context of Brexit, but also in terms of the pledges and agendas our political leaders have set out.

Read the full newsletter here.

Insight: UK Employment Law Round-up – August 2016

Tailoring social media policies to catch Pokémon Go

In our article published today in HR-inform we consider the key steps employers can take to make their social media and information technology policies more robust and mitigate the risks associated with staff playing Pokémon Go.

Click here to read the full article.

Tailoring social media policies to catch Pokémon Go

…gotta catch ’em all!

Last week’s launch of the smartphone game “Pokémon GO” has swept the UK faster than you can say “gotta catch ’em all”. The aim of the game is to explore surrounding areas and catch characters that are hiding in real-life locations. Players use GPS signalling and augmented reality to discover the Pokémon. While many herald this app for its benefits to those who may not do much exercise, employers may need to watch staff productivity to ensure that they are not playing the game while they should be working.

Clearly, if an individual is playing Pokémon GO during work time, they will not be performing their duties. Soon after its release, Boeing discovered staff had downloaded the app on more than 100 work phones. As a result, it has issued a ban on its workforce from playing the game during working hours.

Some employers may allow their staff to continue their search for these illusive characters during lunch breaks. However, having staff wander round the office in their breaks looking for a “Squirtle” or “Rattata” is likely to disturb those who are still working. This could also pose a health and safety risk if workers are staring at, and being guided by, their screens and not looking at where they are walking. It is perfectly acceptable for employers to limit workers’ use of the app to areas outside the building to minimise the disruption it could cause.

If staff are wasting time interacting with this app instead of working, employers are also within their rights to approach this as a misconduct issue and engage the disciplinary policy. So what should employers do to manage this?

  1. Ensure that social media policies are up to date – while these may not specifically refer to use of the Pokémon GO app, it will set out the employer’s expectations.
  2. Ensure the IT and communications policy comprehensively addresses the use of company resources and how employers will deal with misuse.
  3. Where employees are using personal devices at work, consider including or updating the “bring your own device to work” terms in the IT and communications policy to clarify what will amount to acceptable use.
  4. Should there be any loss of productivity or misuse of company resources, follow the employer’s disciplinary policy, using a consistent approach with all staff.
  5. If employers consider it is a risk to work momentum, send a company-wide email reminding staff that they should not be playing the game instead of working and remind them of the relevant company policies.
  6. Avoid a “knee-jerk” reaction as this is likely to be a passing trend that will decline and be replaced by a new craze.
…gotta catch ’em all!