employment law evidence language misconduct mitigation reasons for dismissal trust and confidence

The risks of writing honestly – a Karl Ove Knausgard-based perspective

I’ve recently started re-reading one of my all-time favourite books, A Man in Love (My Struggle Book 2) by Karl Ove Knausgard. It may sound like a romantic book but, in fact, it is brutal. No other word can reflect and sum up this book in its lengthy entirety: brutal.

Basically, the book acts as a stunningly honest portrayal of his life as an adult in his twenties and thirties. However, unlike most autobiographies, which tend to focus on the more positive moments (and dress down, or ignore, the challenging moments), Karl Ove tends to do the opposite and focus on the most embarrassing and horrific moments of his life and more quickly jump over the happier parts. It is the opposite to usual and reflects the author’s seriously pessimistic, and sometimes depressive, thoughts about life and his mostly standard attitude of not wanting good things because, eventually, they will turn bad and, instead, tending to focus and almost embrace sad and lonely periods.

I bought a Kindle five years ago and, since, I’ve read around 500 books (both physical and digital). I queried that figure briefly but, after thinking about it, I believe 2 books a week might even be a slightly conservative estimate. Due to this, it takes something quite special and ‘out there’ within a book to stand out and, during my lunch break yesterday, this book did just that – the time flew and I almost fell into the book, his reflections were that strong and powerful. You know a book has a gripping effect when the sound of a noisy cafe evaporates and your mood changes along with the author’s written mood. Just wow. If you want to learn more about Karl Ove Knausgard, a standard internet search will provide further information about him and his books.

Anyway, why am I talking about a book from a slightly well-known Norwegian author? Well, because after my most recent reading session, I wondered about the attitude of an English (or Welsh) employer to an employee having published a book about their life which, similar to Karl Ove’s work, was brutally honest to the extent of being almost being painful to read.

It is well publicised that nearly all employers are very protective of their reputation and wish to restrict employees from making negative comments about the workplace or colleague. Obviously, given that Karl Ove is a writer, he doesn’t have this problem (rather, when interviewed, he has admitted that he suffers the lasting effects of being brutally honest about his blunt feelings for, and disclosure of private events with, family members and friends) but what if an employee published a new book whilst within employment?

Well, let’s say that Mr Sterling works at an advertising agency in Liverpool.  He has worked there for 10 years and, during that time, hasn’t mentioned his secret ambition to be a writer to anyone.  Then, suddenly, he concludes a draft autobiography after spending 6 months writing at home and a publisher approves it.  In due course, it is published and, due to Mr Sterling using his real name and being brutally honest, the advertising agency (and, more importantly, the people working for it) don’t escape mention and over half are affected by negative comments and recollections of private events in the workplace (and outside it).

Naturally, the advertising agency is going to believe that a pessimistic book in which Mr Draper clearly doesn’t like over half of his colleagues isn’t exactly going to help the reputation of the business and they are likely to have the potential ability to dismiss Mr Sterling if his actions are in breach of their confidentiality and/or disciplinary provisions.  It is for this reason (albeit mainly to protect against online publications, rather than physical books) that most employers list the publication of negative comments about the business and/or ‘comments which may negatively impact the reputation of the business’ as a disciplinary offence (and/or potential gross misconduct) within their disciplinary policies.

Would there ever be a situation in which an autobiography similar to the above wouldn’t result in a disciplinary?  Well, despite the evidential difficulties, if Mr Sterling could prove that the book was a success and, in fact, had led to the number of new clients doubling in the 2 weeks since launch, this may constitute a mitigating circumstance.  More so, if the book was a huge success, the company most likely, from a PR point of view, wouldn’t wish to be seen to dismiss him for being honest and, adversely, may actually want him to remain to encourage new customers.

In this way, as per most disciplinary situations, the consequences of the action have a large amount of sway over the disciplinary sanction (if any) rather than just focusing on the action itself.

For fans of the TV show, Mad Men, this is a similar parallel with Don Draper writing the anti-tobacco ‘letter to the New York Times’ in the episode “Blowing Smoke”.  For those who aren’t familiar, the Creative Director of an advertising agency which had relied on tobacco advertising but lost a major tobacco account decided to vent his fury by announcing in a public letter that the firm would no longer service tobacco clients in the future due to health risks (without first telling the other partners!)

Overall, then, I hope any avid readers among those exploring this article perform a search for Karl Ove and consider exploring his books (albeit I can only wholeheartedly recommend My Struggle Book 2, as My Struggle Book 1 took political correctness and threw it off a bridge by today’s standards) and, also, are aware that the reaction to an employee’s behaviour is near as important as the relevant act itself within a disciplinary process.

covert recording employment law trust and confidence

Does covert recording always amount to gross misconduct?

These days the possibility of someone making a recording of a conversation is potentially much more of an issue than it used to be, as a result of doing so easily by using a smartphone.

Contrary to popular perception the mere fact of recording a conversation, in a face to face meeting or by phone, is not in itself a criminal offence and is not prohibited. If the recording is purely for personal use there is no need to obtain consent or even to let the other person know. However, selling the recording or publishing it without consent can be a criminal offence. Journalists often record conversations, sometimes in secret, but then seek consent or argue that recordings have been obtained in the pubic interest.

You will no doubt have received a call from a business which begins with the caller saying that calls may be recorded for training or evaluation purposes, or something similar. This is often stated to be to ensure compliance with the Telecommunications Act 2000 and the Data Protection Act 2018. As an aside, this probably isn’t sufficient. Under GDPR the valid grounds for recording these calls are:

  • The people involved in the call have given consent to be recorded
  • Recording is necessary for the fulfilment of a contract
  • Recording is necessary to fulfil a legal requirement
  • Recording is necessary to protect the interests of one or more participants
  • Recording is in the public interest, or necessary for the exercise of official authority
  • Recording is in the legitimate interests of the recorder, unless those interests are overridden by the interests of the participants in the call

Under the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 calls may be recorded for:

  • Establishing facts and evidence for business transactions
  • Ensuring compliance with regulatory or self-regulatory practices
  • Ascertaining and demonstrating that standards are being met
  • Defending national security
  • Preventing or detecting crime
  • Investigating or detecting the unauthorised use of that or any other telecommunication system
  • Safeguarding the effective operation of the telecommunications system

If, like me, you occasionally enjoy a bit of mischief-making, keep the list to hand and ask the caller to specify the law that they are relying on. Odds-on they will not even know or be able to identify any of the above grounds!

In a work situation, the position is not so straightforward. There is an implied duty of trust and confidence which applies to all contracts of employment, whether or not they are in writing.

In Phoenix House Ltd v Tatiana Stockman the Employment Appeal Tribunal (EAT) considered whether covert recording in the employment context is a ground for dismissal for gross misconduct.

In the employment tribunal Ms Stockman claimed for unfair dismissal, whistleblowing, race discrimination and victimisation and breach of contract. The complaints of unfair dismissal and whistleblowing were upheld. There was an appeal as well as a cross-appeal. The issue which primarily concerned the EAT in the latest appeal was the covert recording of a meeting. Most of the background is not relevant.

What is significant is that it emerged in evidence that Ms Stockman made a covert recording. She became involved in a restructuring process in which she attended a meeting with a Ms Paula Logan, director of resources of the employer and ultimately responsible for the HR department. Ms Stockman recorded that conversation but did not let Ms Logan know that she was doing so. In the course of the meeting Ms Logan said that she would be investigating a previous meeting which Ms Stockman attended and refused to leave, having been told that the meeting was private. Ms Stockman had become distressed at the prior meeting and had said that she would raise a grievance. Ms Logan told her that her action of interrupting a meeting and refusing to leave would be made the subject of disciplinary action.

At the remedy hearing the employer said that had it known about the recording it would have dismissed Ms Stockman for gross misconduct so that she should not be entitled to any award.

The employment tribunal concluded that the recording was not made for the purpose of entrapment. Rather, she was flustered at the time and did not know whether the recording would work. She made a transcript of it in order to discharge her disclosure requirement in the proceedings. The employer had not stated in its disciplinary procedure that covert recording was an example of gross misconduct. The tribunal concluded that there was a low chance that knowledge of the recording would have resulted in a fair dismissal and assessed that chance at 10%. Compensation was reduced accordingly.

It was contended by Counsel for the employer that:

…any covert recording of a confidential conversation in the absence of a pressing justification was a breach of the implied term of trust and confidence because it is of its nature dishonest conduct designed to obtain an advantage for the employer and place another at a disadvantage.

paragraph 60 of the judgment

It was also contended that secret recordings cannot lead to any conclusion other than the intention to entrap.

As I mentioned at the beginning of this post, His Honour Judge Richardson took account of how times have changed:

There was a time when an employee – or for that matter an employer – had to go to a great deal of trouble to record a meeting covertly. At that time it would be straightforward to draw the conclusion that the recording had been undertaken to entrap or otherwise gain an unfair advantage. But in our judgment times have changed. Most people carry with them a mobile telephone which is capable of making a recording; and it is the work of a moment to switch it on. In our collective experience it is now not uncommon to find that an employee has recorded a meeting without saying so. In our experience such a recording is not necessarily undertaken to entrap or gain a dishonest advantage. It may have been done to keep a record; or protect the employee from any risk of being misrepresented when faced with an accusation or an investigation; or to enable the employee to obtain advice from a union or elsewhere.

We do not think that an ET is bound to conclude that the covert recording of a meeting necessarily undermines the trust and confidence between employer and employee to the extent that an employer should no longer be required to keep the employee. An ET is entitled to make an assessment of the circumstances. The purpose of the recording will be relevant: and in our experience the purpose may vary widely from the highly manipulative employee seeking to entrap the employer to the confused and vulnerable employee seeking to keep a record or guard against misrepresentation. There may, as Mr Milsom recognised, be rare cases where pressing circumstances completely justified the recording. The extent of the employee’s blameworthiness may also be relevant; it may vary from an employee who has specifically been told that a recording must not be kept, or has lied about making a recording, to the inexperienced or distressed employee who has scarcely thought about the blameworthiness of making such a recording. What is recorded may also be relevant: it may vary between a meeting concerned with the employee of which a record would normally be kept and shared in any event, and a meeting where highly confidential business or personal information relating to the employer or another employee is discussed (in which case the recording may involve a serious breach of the rights of one or more others). Any evidence of the attitude of the employer to such conduct may also be relevant. It is in our experience still relatively rare for covert recording to appear on a list of instances of gross misconduct in a disciplinary procedure; but this may soon change.

paragraphs 77 and 78 of the judgment

Judge Richardson then offered some useful guidance.

That said, we consider that it is good employment practice for an employee or an 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. We think this is generally recognised throughout employment except perhaps by some inexperienced employees. This practice allows both sides to consider whether it is desirable to record a meeting and if so how. It is not always desirable to record a meeting: sometimes it will inhibit a frank exchange of views between experienced representatives and members of management. It may be better to agree the outcome at the end. Sometimes if a meeting is long a summary or note will be of far more value than a recording which may have to be transcribed.

The result was that the appeal on this ground was dismissed.

The upshot is that, taking into account how times and technology have changed, the obvious precaution is to cite covert recordings as an example of gross misconduct in a disciplinary procedure. If an employee then makes such a recording, the likely outcome is known in advance and almost certainly fair.