In the recent Employment Tribunal case of Mrs A Price v Axis Parcel Service Ltd: 3329426/2017 it was decided that an employee could rely on evidence secured by a secret recording when pursuing a claim for constructive dismissal.

The Claimant had been concerned that two colleagues, including her manager, were talking about her behind her back and secretly recorded their conversation on her mobile phone which she had left behind. She was shocked when she played this back and heard her manager commenting that they were going to ‘get rid of her’ within the next few months and would then replace her.

The Claimant waited for around two weeks and then decided to resign due to these comments. She then claimed constructive dismissal arguing that the comments amounted to a fundamental breach of the implied term of trust and confidence.

The Respondent argued that the comments could not have been intended to damage trust and confidence because it was not intended that the Claimant would hear them. In spite of this the Employment Tribunal took the view that the comments were likely to damage trust and confidence given that the Claimant could have learnt of the comments in some other way. This was sufficient for the Tribunal to find that this amounted to a fundamental breach of contract which entitled the Claimant to resign in response. The Respondent had not produced evidence that the Claimant could have been dismissed for a potentially fair reason and thus the dismissal was unfair.

The Tribunal considered whether or not the Claimant had waived the right to resign by waiting two weeks but took the view that this was a reasonable period of time to wait in view of the loss of income that this entailed.

It is difficult to see how employers can prevent recording devices from entering the workplace in this day and age. It may be more difficult for an employee to rely on any recorded conversation in a constructive dismissal claim however if the contract of employment or a disciplinary policy expressly prohibits the recording of conversations in the work place. Constructive dismissal is essentially a breach of contract and a Tribunal may be more reluctant to uphold such a claim if the employee has already breached the contract by recording conversations in the workplace.

Of course the best way to avoid such claims is to minimise the sort of gossip in the workplace that led to this claim arising. It is difficult for employers to legislate for a lack of common sense from their managers! Training should stress to managers the importance of being discrete about sensitive decisions affecting employees.  

This is a first instance decision and thus is not binding on other Employment Tribunals but may be persuasive.

Read the full pdf here

If you need advice on this case or any other employment matter please contact me on martin.cornforth@elliotmather.co.uk.