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Covert recordings – is something bugging you?

Covert recordings – is something bugging you?

With advances in technology, the issue of employees covertly recording internal meetings has become a matter of increasing concern for employers.  In the recent case of Punjab National Bank (International) Ltd and others v Gosain, the Employment Appeals Tribunal (EAT) reconfirmed that not only could an employee’s covert recordings of open discussions in a disciplinary or grievance hearing be admitted as evidence in litigation but that private panel discussions could also be admissible.

Ms Gosain resigned from her employment with Punjab National Bank (International) Ltd (the Bank) and brought claims against the Bank for sexual harassment, sex discrimination and constructive dismissal. Shortly before her resignation she had been subject to disciplinary proceedings and she had filed a grievance.  Ms Gosain secretly recorded the contents of both hearings, including a 15-minute conversation between the panel during a break in proceedings, during which time she was not in the room. During the break, the Managing Director of the Bank had told the manager conducting the hearing that Ms Gosain should be dismissed, and the manager had replied that he was deliberately skipping over key issues Ms Gosain had raised in her grievance. The Bank sought to challenge the admissibility of those recordings in Tribunal litigation.

The position following Amwell View School v Dogherty, was that while covert recordings of internal hearings could be admissible as evidence in tribunal litigation, the employee could not rely on anything they had recorded which captured private discussions held by the panel. However, in Gosain, the EAT sought to distinguish the nature of the private deliberations. In Dogherty, the Tribunal held that the private discussions should be excluded from evidence as they focussed on the matters that were being considered as part of the internal process. However, Ms Gosain’s recording did not capture the panel’s private decision-making process, merely a private conversation between those conducting the hearing. The EAT clarified that the rule in Dogherty applied only to the panel’s deliberations, not conversations mid-hearing.

The use of employee covert recordings is increasing so employers need to take steps to avoid finding themselves in a similar position to the Bank. Ensure that disciplinary and grievance policies make clear the Company’s position on recording and restate that position in any invite letter. If the employer chooses to record the hearing itself, this may negate the impact of an employee’s covert recording. If the employer intends to rely purely on written notes, it should insist that mobile phones and other electronic devices not be taken into the room during a hearing. During any break in proceedings, the panel should refrain from discussing the matter until the hearing is over, or, if necessary, leave the room and find another private venue in which to talk, away from the employee. This reduces the risk of discussions being captured.  Finally, it is always prudent to ask the employee to confirm before a disciplinary or grievance hearing begins that they are not recording the proceeding – make a note of their answer in the minutes. While this will not prevent the employee from using anything they subsequently do record, an employer can use that confirmation to show that the employee lied: this may damage their credibility before a tribunal.

By Chris Williams

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