31 March 2014

Minding your P's and Q's - covertly recorded comments can come back to bite you


As the recent case of Punjab National Bank International) Ltd and others v Gosain shows, employers and the courts are increasingly having to wrestle with covert recordings made by employees and when they should be admitted as evidence. The availability of ever more sophisticated recording technology has enabled employees to record their colleagues and managers in both formal meetings, private meetings (which the employee would not normally attend) and even during ad hoc encounters.

Employers need to make sure that senior staff and managers appreciate these risks and that their contracts and handbooks keep up with these changes in behaviour.

The Employment Tribunal has a wide discretion as to the evidence it can allow into the court room. In doing so it needs to weigh up the public interest in allowing private deliberations to remain private against the need to have available all the evidence that is necessary to resolve the issues in a case justly. The fact that evidence relates to confidential matters or is embarrassing to the employer will not prevent it being admissible.

The 2006 case of Amwell School v Dogherty suggested that if an employee has made a covert recording of, for example, a disciplinary meeting, the recording of the part of the meeting at which the employee was present is likely to be admissible, but a recording of private deliberations of the panel members is not.

However in the recent case of Punjab National Bank (International) Ltd and others v Gosain, the Employment Appeal Tribunal upheld a tribunal judgment that covert recordings of both the employee’s attendance at a disciplinary hearing and the private deliberations of the panel afterwards were admissible in evidence. The Judge allowed the recording of the private meeting to be used because of the nature of what was said. She distinguished between covert recordings of private disciplinary deliberations that confined themselves to the issues the disciplinary panel properly needed to weigh up and a covert recording of private comments which showed that the dismissal was pre-determined, that the employee’s grievance had been deliberately skated over and that attitudes towards the employee were tainted by discrimination. The EAT in the Amwell case had indicated that the outcome might have been different in that case if the covert recording of the private meeting had shown that there was discrimination.

What do employers do about this? Recording devices are getting more sophisticated, as are the employees who use them. There is much talk of inexpensive and miniscule drone recorders, no bigger than insects. Employers should ensure that their contracts make clear that covert recordings are prohibited in the work place, which will have a deterrent effect and will bolster the employer’s position if there is an argument about the admissibility of recorded evidence. They should also ask at the beginning of meetings whether employees are recording proceedings – and in that respect they will also be in a better position to object if their contracts and handbooks make the prohibition clear.

Finally and most importantly they should ensure that their managers understand the importance of minding their P’s and Q’s when conducting private deliberations after a grievance or disciplinary meeting, in the knowledge that even comments they assumed were made in private may find their way into a court room.

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Category: Article