You suspect minor misconduct by an employee, so you arrange a meeting to discuss it with them. Without your knowledge, the employee makes an audio recording of this meeting on their phone. Does making the recording mean you can dismiss them for gross misconduct?
Probably not, but it depends on the circumstances.
This issue arose during a recent Employment Tribunal case. Initially, the case had nothing to do with covert recordings: an employer had dismissed an employee, who then claimed unfair dismissal. During the tribunal hearing however, the employee disclosed that she'd made a secret recording of a meeting before the disciplinary process began.
The tribunal decided that the dismissal was unfair and the employee should be compensated. However, they reduced the compensation by a small amount because there was a chance the employee would have been dismissed fairly for gross misconduct had the employer known about the covert recording.
The employer appealed to the Employment Appeal Tribunal (EAT), where they argued that making the recording was gross misconduct – because it was dishonest and therefore breached the implied term of trust and confidence that exists in every employment agreement. They said, therefore, that they'd have definitely dismissed the employee (fairly) had they known about the recording and so the award should have been reduced to zero.
The EAT sided with the Employment Tribunal. Making a covert recording isn't always serious enough to justify dismissal – it'll depend on the circumstances. The purpose of the recording will be relevant; there is a difference between a manipulative employee using a recording to entrap their employer, and a confused or vulnerable employee seeking to guard against misrepresentation. There's also a difference between recording a disciplinary hearing and recording the employer's private deliberations following the hearing. If the employee was explicitly told not to make the recording and lied about it, that's worse than if they'd hardly thought about it.
What this means for you
It's sensible to address this matter in your policies, and repeat it at the start of meetings. If you warn employees that you consider covert recordings to be serious misconduct, you're more likely to be able to justify dismissal for it – though it will still depend on the circumstances. Alternatively, you could allow employees to record meetings sometimes – there can be benefits.
How we can help
Our Employee handbook covers disciplinary and grievance meetings, and forbids employees from recordings meetings without written consent.
If an employee does something wrong in the course of their employment, the employer – even if not in the wrong – can be found vicariously liable for it.
But what does it mean to act in the course of employment? If an employee makes a racially offensive post on Facebook, might the employer be found liable for any offence caused?
In a recent case, an employer was found not liable for the offence. However, it will depend on the circumstances.
In this case, the Facebook post wasn't found to have been made in the course of employment because it didn't refer to the employer or to any other employees and was only shared privately with friends – which didn't include the offended employee. However, it's impossible to give a single definition of 'acting in the course of employment'. If, for example, the employee had worked in marketing or communications and social media posts were part of the job, this might have been 'in the course of employment'.
Even had the Facebook post been part of the job, the employer had policies that made it clear that such behaviour was unacceptable. That, according to both the Employment Tribunal and the Employment Appeal Tribunal, meant that the employer had taken all reasonable steps to prevent the discriminatory act, which is a defence to vicarious liability in discrimination cases.
What this means for you
Having a social media policy reduces the risk of employees acting this way, makes it easier to discipline for such action and makes it less likely that the business will be found vicariously liable for discrimination.
Note that whether or not the employee could be disciplined for the post is a separate issue – she received a final written warning. If someone shouts racial abuse at a colleague, that's probably gross misconduct whether or not it's connected with their job. Racial abuse via social media should be treated similarly.
How we can help
Our Employee handbook addresses offensive posts on social media and also includes a disciplinary procedure.
Are you happy with the current state of family-related employment laws? Have you ever had ideas about how they could be improved? Or do you just want to know more about the direction they're moving in?
If so, there are a few current Government consultations you might be interested in.
The consultation titled Good Work Plan: proposals to support families echoes the Good Work Plan that was published last December setting out the Government's strategy for employment law reform (which itself followed the Government-commissioned Taylor Review of Modern Working Practices). This consultation includes 3 new proposals and is split into 3 parts: the first concerns family-related leave and pay and the response deadline is 29 November 2019; the deadline for responding to the other 2 parts, on neonatal leave and on policy transparency, is 11 October 2019. The questions posed by the Government are listed at the end of each section and again at the end of the consultation, pages 64 to 75.
Family related leave and pay: Shared parental leave and pay were introduced in April 2015. After the initial mandatory 2 weeks' leave, mothers are allowed to exchange their maternity leave for shared parental leave, which they can share with the father. 4 years on, however, the take up of this remains low. This consultation reviews the options for encouraging more fathers to take time off. For example, evidence suggests that making leave and pay for fathers available on a use-it-or-lose-it basis generally results in a higher take up – under the current system, fathers can only take shared parental leave if the mother is eligible for maternity leave and gives up some of her entitlement. Average earnings are higher for men than for women, so for most couples it's economically advantageous for the mother to take the leave. There also remains cultural resistance to fathers taking leave to care for their children.
Neonatal leave and care: It's proposed that parents of babies who spend 2 weeks or more in neonatal care should be given one week's leave for every week spent in hospital. The proposal asks questions about exactly how this should operate, for example whether the leave or pay should be capped.
Policy transparency on family-related leave and flexible working: Should large businesses be required to published these policies? Should there be a requirement to say in job adverts whether you're open to flexible working? While applicants can, of course, ask about such policies at interview, some worry that expressing interest in such things could jeopardise their chances.
Other consultations, publications and legislation
The Government has confirmed that it will extend redundancy protection to 6 months following a mother's return to work. This means that during this time, she must be given priority over other employees when considering suitable alternative employment. If, however, there are no suitable alternative positions, redundancy might be unavoidable.
This protection will also extend to employees returning from adoption leave and, in some form, from shared parental leave. Legislation is not yet in place