covert recordings

Covert recordings in the workplace

Employees covertly recording on a smartphone is becoming an increasingly common feature in cases which deal with workplace issues that make their way to the Employment Tribunals.

It has long been clear that the act of an employee covertly recording a meeting at work may amount to misconduct (depending on the circumstances). However, the recording itself may be admissible as evidence before an Employment Tribunal in certain cases.

This article explores some recent cases where the courts and tribunals have considered covert recordings in the workplace.

Phoenix House Ltd v Stockman [2019]

Phoenix House (Phoenix) employed Ms Stockman as an accountant. She felt that an internal restructuring process was biased against her and that the Finance Director had treated her differently to other employees.

Ms Stockman made a formal complaint to the Head of Finance. Phoenix invited the Finance Director and Ms Stockman’s colleague to an informal investigation meeting. Ms Stockman forcefully interrupted the meeting and refused to leave, despite being asked to do so. When Phoenix later invited Ms Stockman to a separate meeting with HR, she covertly recorded that meeting.

The Employment Tribunal held Ms Stockman’s recording admissible as evidence in respect of her successful claim of unfair dismissal.

Phoenix appealed to the Employment Appeal Tribunal (EAT). They argued that Ms Stockman’s compensation for unfair dismissal should be reduced to nil. This was on the basis that, had they known about the covert recordings at the time, this would have justified her dismissal on grounds of misconduct.

Decision

The EAT rejected Phoenix’s appeal, upholding Ms Stockman’s unfair dismissal claim. This was on the basis that:

  • Phoenix had no policy stating that staff could not record meetings. Neither did they have a policy that covert recording amounted to a disciplinary offence;
  • an employee’s reasons for making a recording will be relevant when considering whether the act amounts to gross misconduct; and
  • a vulnerable employee seeking to keep a record or to guard against misrepresentation is very different from a highly manipulative employee seeking to entrap their employer.

The EAT was satisfied that Ms Stockman had not sought to use the recording as a form of entrapment.

Lopez Ribalda v Spain [2020]

Ms Ribalda worked as a cashier at a leading Spanish supermarket chain. In June 2009, her manager identified that there were significant stock discrepancies. As a result, they put up CCTV cameras in the supermarket as part of an investigation.

The supermarket installed visible cameras aimed at identifying thefts by customers. However, they also put other cameras in place to help identify thefts being committed by employees at the cash desks. Those were concealed. The supermarket did not specifically inform employees about the concealed cameras and covert recordings.

The supermarket caught Ms Ribalda and her colleagues on video stealing items or helping other co-workers and customers to steal. Five co-workers admitted theft and were dismissed. They subsequently made claims for the Spanish equivalent of unfair dismissal. They alleged that the supermarket had breached their right to privacy under Article 8 of the European Convention on Human Rights.

Decision – ECHR

The Spanish Tribunal and High Court held that the employer had obtained the video surveillance lawfully with the legitimate, appropriate aim of detecting theft at the supermarket. However, the ECHR took a different view.

The ECHR concluded that the Spanish courts had failed to strike a fair balance between the rights involved. It decided that the Spanish courts had not taken into account the fact that the measure was in breach of the Spanish legal requirement to inform those affected about the collection of personal data. The covert surveillance was not justified as the employees had a reasonable expectation of privacy in the workplace.

The Grand Chamber – ECHR

The supermarket appealed to the Grand Chamber. A majority held that there had been no infringement of Article 8 in relation to privacy. The Spanish courts were entitled to hold the intrusion to be proportionate and the dismissals of the employees to be fair in order to catch the thieves.

General matters to consider when dealing with “covert recordings” in the workplace

For employers:
  • Carefully consider whether you wish to define covert recording in your contractual terms and staff handbook as a disciplinary offence.
  • Remind employees that they must not record meetings without consent. Consider updating your policies and procedures to reflect this.
  • You could implement a policy to tape record appropriate meetings (e.g. disciplinary meetings) to ensure accurate records are kept. However, you should weigh this against the potential data protection implications. Further, obtain appropriate consent from all parties first.
  • Have you told the employee not to record, but they have continued? Is the nature of the material recorded highly confidential or personal to the business or to others?
  • Employers considering carrying out CCTV or audio monitoring should seek legal advice before doing so. You should also maintain strict policies on monitoring activities. You should only carry out covert video surveillance in exceptional and legally proscribed circumstances; where there is no less intrusive method of tackling a legitimate interest.
For employees:
  • Remember that making a covert recording may result in your employer taking disciplinary action against you if the recording is in breach of agreed policies/contract.
  • Covert recordings can potentially have data protection implications. You therefore risk action by the Information Commissioner if you breach the rights of others and/or the Data Protection Act 2018.
  • In certain circumstances, such as alleged victimisation, the tribunal may regard an employee’s covert recording as a “protected act”. Therefore, an Employment Tribunal may regard the act as a legitimate protection of a person’s legal entitlements.

Our employment team can assist you with any concerns about covert recordings in the workplace. Call us today for a FREE initial discussion on 0800 988 7756.


gender equality in the workplace

Gender equality in the workplace

This week, in support of the upcoming International Women’s Day, we joined the Law Society’s Solicitor Chat on Twitter about gender equality in the workplace. If you didn’t follow the chat, here’s a summary of our answers to the questions.

1. What is the Equality Act 2010, and how does it impact the workplace?

The Equality Act 2010 intends to promote equality and protect individuals from unfair treatment, irrespective of their race, gender, sex, age, disability, religion/belief, marriage/civil relationship, pregnancy/maternity or sexual orientation. It replaced the previous anti-discrimination laws with a single Act.

Within the workplace, it aims to improve equal job opportunities and fairness for all employees and job applicants.

2. What is classed as gender discrimination? What are the differences between direct and indirect discrimination?

Gender discrimination is when you are treated differently or unfairly because of your gender.

Direct discrimination is when, because of your gender, someone treats you worse than someone of the opposite sex who is in a similar situation. For example, a job advertisement for a waiter (as opposed to waiting staff), giving the impression that the job is only open to men.

Indirect discrimination is when an organisation has a policy or way of working that applies in the same way to both sexes, but which puts you at a disadvantage because of your gender. For example, where an employer decides to change shift patterns for staff so that they finish at 5pm instead of 3pm. Female employees with caring responsibilities could be at a disadvantage if the new shift pattern means they cannot collect their children from school or childcare. Indirect sex discrimination can be permitted if the organisation or employer is able to show that there is a good reason for the policy. This is known as ‘’objective justification.’’

Harassment and victimisation are also types/forms of sex discrimination.

3. If you believe that you’ve been discriminated against in your workplace because of your gender, what can you do?

There are a number of things you can do if you feel you have suffered in your workplace because of your gender. These include:

  • Writing everything down and keep a note of everything that has been happening;
  • Talking to your manager and checking your employer’s policy on gender discrimination and the procedure in place;
  • Report your concerns to HR;
  • Following the grievance process with your employer. Put your grievance in writing;
  • Inform your Union if you have one;
  • Speak to ACAS if you need further help; and
  • Speak to a solicitor.

4.  What are the main things employers can do to build a gender equal workplace?

There are a number of steps employers can take, including:

  • Close the gender pay gap;
  • Promote a healthy work – life balance;
  • Promote shared parental leave;
  • Strict and effective policies in place dealing with harassment and victimisation so that it can be stopped immediately;
  • Make sure the recruitment process is transparent and consistent;
  • Make mentors available for everyone;
  • Consider leadership roles for both men and women in the workplace; and
  • Creating and reinforcing an open-minded atmosphere.

Our employment team acts for both employers and employees. If you have a concern about gender equality in your workplace, call us on 0800 988 7756 for a FREE initial discussion.


professional negligence pre-action protocol

Pre-Action Protocol for Professional Negligence - your frequently asked questions

What is the Pre-Action Protocol for Professional Negligence?

The Pre-Action Protocol for Professional Negligence (“the Pre-Action Protocol”) forms part of the Civil Procedure Rules. It applies when someone wishes to claim against a ‘’professional’’ as a result of that professional’s alleged negligence or equivalent breach of contract, or breach of fiduciary duty.

What is the purpose of the Pre-Action Protocol?

It sets out a code of good practice with the aim for parties to exchange as much information and documentation as possible in the early stages in relation to a prospective professional negligence claim. This is so that parties can try and reach an amicable solution. It encourages parties to see issuing court proceedings as a last resort.

Parties are encouraged to cooperate openly in the exchange of relevant information and documentation. The protocol sets out steps/guidelines which parties are generally encouraged to follow, before considering commencing court proceedings.

Does the Pre-Action Protocol apply to claims against any professional?

In brief, no. There are other protocols that apply to claims against:

  • Architects, engineers and quantity surveyors: the Pre-action Protocol for Construction and Engineering Disputes; and
  • Healthcare providers: the Pre-Action Protocol for Clinical Disputes.

However, the Pre-Action Protocol does apply in claims against solicitors, accountants, financial advisers, IT professionals and most other professionals.

What are the aims of the Pre-Action Protocol?

  • To understand and properly identify the issues in dispute in the proposed claim and share information and relevant documents;
  • Make informed decisions as to whether and how to proceed;
  • To try to settle the dispute without proceedings or reduce the issues in dispute;
  • Avoid unnecessary expense and keep down the costs of resolving the dispute; and
  • Support the efficient management of proceedings where court proceedings cannot be avoided.

What happens if I don’t follow the Pre-Action Protocol?

Parties should try to follow the Pre-Action Protocol as far as possible. If they don’t follow it and the claimant subsequently issues proceedings, the Court has the discretion to award sanctions. Such sanctions are usually in relation to costs.

How long do I have?

The usual limitation periods apply for professional negligence claims. The claimant will usually therefore comply with the Pre-Action Protocol before the limitiation period expires, allowing time to issue court proceedings within the time limit.

However, the parties can agree a standstill agreement to extend the period in which a limitation defence will not be pursued. Alternatively, a claimant may commence proceedings and invite the professional to agree to an immediate stay of the proceedings to enable the protocol procedures to be followed before the case is pursued.

What is the procedure?

The Pre-Action Protocol briefly sets out the following timetable as a guideline:

  • The claimant sends out a Preliminary Notice to the professional with a brief outline of their claim. The professional should acknowledge receipt of this within 21 days.
  • The claimant should then send a more detailed Letter of Claim to the professional. Again, the professional should acknowledge receipt within 21 days.
  • The professional has three months from their acknowledgement to investigate and respond to the Letter of Claim. This is done by sending the Claimant a Letter of Response and/or a Letter of Settlement.
  • If the professional cannot meet the three month deadline, the they should explain this to the claimant as soon as possible and, in any event, before the end of the three-month period.
  • If the professional denies the claim in its entirety and there is no Letter of Settlement, the claimant can then issue court proceedings.
  • Where the professional does not give a complete denial and/or does not send a Letter of Settlement, the parties should then commence negotiations to try and resolve matters without the need for formal court proceedings.
  • If the parties cannot agree a settlement, the claimant may issue proceedings.

Does this mean I don’t have to go to Court?

The aim of the Pre-Action Protocol is to encourage parties to settle without going to Court. The parties should consider whether some form of alternative dispute resolution (ADR) may assist settlement without issuing at court. Indeed, the protocol asks the claimant to consider whether they would like to attempt adjudication from the outset. They must set this out to the professional in the Letter of Claim.

The claimant should not start court proceedings until the Letter of Response denies the claim in its entirety and there is no Letter of Settlement; or if parties have reached the end of the negotiation period.

Where possible, claimants should give 14 days written notice to the professional before proceedings commence.

If you have a potential claim against a professional, we recommend you seek legal advice as soon as possible. Call our specialist team today for a FREE initial discussion on 0800 988 7756.


Accountant professional negligence

Accountant professional negligence: FAQs

Individuals and businesses instruct accountants to deal with a range of financial matters. If you have employed someone as an accountant, it is only reasonable to expect that they will perform their role professionally and that they will not cause you to suffer a financial loss. Occasionally however, things can go wrong whereby you do end up suffering a financial loss as a result of the accountant’s negligence. So, what action can be taken? What is accountant professional negligence?

I have received poor service from an accountant. Can I make a claim?

In most cases, receiving poor service from your accountant is not enough to mean that the accountant was negligent. However, if the accountant is regulated by the Association of Certified Chartered Accountants (ACCA) or the Institute of Chartered Accountants in England and Wales (ICAEW), you may be able to make a complaint.

Can I sue my accountant?

As with all professional negligence claims, there are three elements that make up a successful claim. You must be able to show all three elements; therefore evidence is essential. 

1. An established duty of care

The accountant has a contractual liability towards you and a duty of care in negligence. The duties of the accountant will however primarily depend upon the agreement between them and you.

2. A breach of that duty

The accountant must have done something (or failed to do something) in breach of that duty of care. This will be conduct below the standard that would reasonably be expected of an accountant.

3. A loss caused by the accountant’s negligence.

In order to bring a claim against your accountant, you need to be able to show that their negligence caused you to suffer a financial loss.

Common types of accountant professional negligence

As an accountant’s role is broad, there are various examples of the types of negligence we might see. These include:

  • Failure to file tax returns on time
  • Incorrect share sale valuations
  • Negligent tax advice
  • Insolvency liabilities
  • Failure to detect fraud following an audit
  • Calculating PAYE correctly

How much is my claim worth?

This will depend on the circumstances of your case. A professional negligence claim is usually for damages to compensate you for the loss you have suffered and to put you back into the position you would have been in had the accountant acted reasonably in the first place.

In the recent case of Manchester Building Society v Grant Thornton UK LLP, the Court of Appeal decided that the defendant’s negligence had caused the claimant’s loss. However, the Court held that the defendant had not actually assumed responsibility for the claimant’s losses. Therefore, the claimant was not able to recover this as damages. This is because the defendant had been retained to advise on how business activities should be treated in the accounts. They were not responsible for the financial consequences of the claimant’s business activities.

Are there any time limits for bringing a claim?

There are strict time limits that apply if you wish to bring a professional negligence claim against an accountant. That time limit (“limitation“) is usually six years from the date of the negligence. There are, however, some exceptions and we would urge you to act as soon as you become aware of any potential negligence.

Do I need to go to court?

Not all professional negligence claims go to court. Indeed, court proceedings should be seen as a last resort and avoided wherever possible.

Many claims are resolved by negotiation and/or mediation. There is a Pre-Action Protocol which sets out a procedure for such claims to follow. Firstly, the claimant sends a letter of claim to the accountant, setting out the case against them. The accountant then has opportunity to respond, setting out their position. This can often set the wheels in motion to start discussing a settlement.

If you think your accountant has been negligent then you need to act as soon as possible. Our experienced professional negligence team is here to help. Call us today on 0800 988 7756 for a FREE no obligation discussion.


Where do we draw the line?

Boundary disputes and how to resolve them

Boundary disputes arising between neighbours are very common and can escalate unreasonably, often resulting in unnecessary costs which can spiral out of control.

A boundary issue can often be used as a ‘weapon’ when neighbours have had a falling out over something. Further, people’s actions can sometimes be disproportinate to the size and value of the land in dispute. A minor dispute can therefore quickly escalate and before you know it, you are faced with, or rush into, legal action.

So, where do we draw the line?

Love thy neighbour

Of course, we cannot choose our neighbours. Nevertheless, many of us will have the same neighbours for many years. Therefore the common sense approach is to try and reach an agreement with your neighbour, in order to resolve the issue amicably.

Talk to your neighbour; face to face if you can, and make a note of anything that has been agreed. If you feel uncomfortable approaching them then write down your concerns and send it to your neighbour instead. Or perhaps get a mutual friend to contact them on your behalf.

More often than not, the best policy is to find a compromise in order to maintain a good relationship with your neighbour. For example, sharing the costs for maintaining a fence or replacing a fence panel. Remember that you are neighbours and have to live next door to one another. Reaching an amicable agreement will cause far less stress and certainly be a lot less costly as well.

Evidence

Establishing the correct boundary and its positioning can be a minefield. These things are not always clear-cut, not to mention that boundary locations may vary over time. So where can we find evidence of where the true boundary lies and who owns the boundary structure (i.e. the fence, hedge or wall along the boundary).

Title plans or plans within the historic deeds may show general boundaries and some registers may also refer to the boundary in question. However not all titles/documents at the Land Registry provide the information you may be looking for. For example, the red line on the Land Registry title plan does not define the exact legal boundary. It merely gives an indication of the general location of the boundary. Further, not all title documents will indicate who has ownership of which wall or fence. You may find that looking at the title documents relating to your neighbour’s property may provide information not necessarily covered in yours.

There is also the availability of online resources such as Google Earth and Google Street View to assist with trying to obtain evidence.

Another option would be to appoint an expert surveyor to conduct a site visit and produce a report, giving their opinion on the correct boundary location. The surveyor will base this on the information they are given and what they observe on site.

Get some help

Sometimes discussions with your neighbour are not successful, and matters may reach an impasse between you. If this happens, there are various options for resolving the issue. We recommend seeking independent legal advice at the earliest opportunity.

A solicitor’s letter setting out the facts and possible implications if the matter was to escalate to Court often works to focus the parties’ minds. A solicitor will also advise you on the various methods of dispute resolution. For example, mediation can be a very successful method of resolving a boundary dispute. Court proceedings should be seen as a last resort and should be avoided wherever possible.

Our expert property disputes team can help if you have a boundary issue. If you have a boundary dispute, call us today on 0800 988 7756 for a free initial discussion.