Covert recording brings overt cost award | Employment Law

Facts & findings of the case

In the recent case of Tan v Copthorne Hotels an employment tribunal made a large costs award against Mr Tan. It is a noteworthy case as not only did they award Copthorne Hotels the sum of £432,000, which is one of the largest awards for of costs against an employee in its history, the tribunal also gave a scathing assessment of Mr Tan’s actions in covertly recording conversations at work.

Mr Tan was the Senior Vice President of procurement at the Copthorne Hotels. Following the termination of his employment Mr Tan brought multiple employment claims against Copthorne Hotels. These claims included claims for unfair dismissal, age discrimination, race discrimination, sex discrimination, victimisation, harassment and whistleblowing detriment. The tribunal found against Mr Tan in respect of all of his claims and made some noteworthy points in the case as detailed below:

• In relation to the covert recordings they found that Mr Tan had showed ‘duplicitous and underhand conduct’. As part of the case the tribunal heard evidence that one of the Copthorne Hotels employees had suggested to Mr Tan that he make a secret recording of a meeting to which Mr Tan had replied ‘but it’s illegal, may get caught’. The tribunal found this reply to be deceitful, as Mr Tan had already made covert recordings and they believed that it showed that Mr Tan was fully aware that what he had done amounted to wrongdoing; and

• The tribunal also stated that had they not have considered Mr Tan ’s dismissal to be fair then Copthorne Hotels would have been justified in dismissing Mr Tan for making covert recordings of conversations with colleagues. The tribunal found in particular that the taking of covert recording had ‘undermined the trust and confidence between the parties’.

Our comments

A costs award in the tribunal is the exception and not the rule and therefore it is unusual to see an award for such a large amount of money.

What is more the tribunal in this matter were particularly unhappy with Mr Tan making numerous covert recordings and while their comments are not binding on future tribunals it is helpful to see their rationale when dealing with such matters. Employers will however, despite this tribunal case, need to proceed with a degree of caution when dealing with employees who have made covert recordings as in different factual circumstances a tribunal may be far more forgiving of such actions. 

What should I note from this case?

• If you are an employee it is important to be aware of the tribunal’s powers to award costs in tribunal cases. While cost awards are more unusual in a tribunal, employees should take care to ensure that their behaviour isn’t vexatious, underhand or in any way duplicitous. Not only can such behaviour lead to a costs award against an employee it can also undermine their whole case as it damages their credibility.
• If you are an employer, particularly where the employee bringing a tribunal claim is a high net worth individual and therefore more likely to have assets to satisfy a costs award, careful thought should be given as part of any tribunal claim as to whether to apply for a costs award.

If you would like more details as to the circumstances under which costs may be awarded please see our forthcoming article entitled ‘Costs in the employment tribunal’.

For advice please contact our Employment Law Solicitors on 0345 20 73 72 8 or email info@thursfields.co.uk