Weekly dilemma: Covert recording of alleged pregnancy discrimination

One of my employees has recently raised a grievance, saying that her managers are bullying her on the ground of her pregnancy. She has admitted covertly taping many of her meetings with her managers “as evidence”. The managers deny the bullying allegations but are furious about the covert taping and are no longer willing to have her in the company. What do I do?

Lots of issues here, with no very happy outcomes in sight – sorry!

First, the discriminatory bullying allegation needs to be investigated. A failure to look into it could itself constitute an act of discrimination. Your distaste for your employee’s covert recording tactics does not affect her rights to be protected from discrimination, nor your obligation to look into her complaint. Indeed, the tape recording, however inappropriately obtained, is probably the easiest way to look into this – assuming it is of sufficient quality, either it will support what she says or it will not. Ask for a copy immediately.

If she declines, then that probably tells its own story. However, if the tape is produced and does support her version of events then your managers can have no complaint that the evidence against them was obtained covertly. A tribunal will be distinctly unimpressed by any argument that, “yes, I did misbehave but my employer should not have been able to use this evidence to prove that I did”. The tribunal is substantially unconcerned by the sort of legal knottery seen in those police procedural dramas where the gun is found during a warrant-free search of the perp’s bin in the first five minutes and the remaining fifty-five are spent reaching the same conclusion lawfully.

Whether or not the allegations have substance – remember that one man’s bullying is another’s performance management – your biggest problem is the managers’ refusal to have her back. If that means she has to leave, then the risks are obvious, ie unfair dismissal and a potential claim of victimisation (less favourable treatment as a direct result of her discrimination allegation).

Had it not been for the covert tape recording then such claims would be substantially impossible to defend, but in taking this step your employee may unwittingly have done you a favour. The key here will be to distinguish between the making of the complaint, which (absent demonstrable bad faith) is protected, and the manner of going about it, which is not. We can all imagine the managers’ sense of mistrust and betrayal – how would you ever be able to have a grown-up conversation with that employee again, knowing or believing that she was potentially manoeuvring you into saying something inept for the record? There is a more than decent potential argument that covert taping by the employee could be gross misconduct just as covert taping by the employer could easily be a breach of trust and confidence sufficient to justify a constructive dismissal claim by the employee.

However, you cannot leap straight to that point. A normal disciplinary procedure will still be appropriate, but be careful. You need to recognise, if it is the case, that your employee may be the wronged party on the bullying front. Even if objectively it was not bullying, why did she think it necessary to tape the meetings? Perhaps you have ignored or brushed away earlier complaints? Perhaps she did it under legal advice? Maybe she is unwell and in that state saw herself as entitled or obliged to prove herself right in this way. If her explanation is something “innocent” then you should put this to the managers and see if it changes their view of having her back. If it does not, then it becomes your decision – dismiss and take the risk of a claim, or impose her back on her managers and wait for something to break.

David Whincup, partner and head of employment, London, Squire Sanders Hammonds

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