Secretive Recordings

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The Problem

The issue of recording internal meetings (openly or otherwise) exercises the minds and emotions of many employers, especially as smart phones make this practice more accessible. But what happens if an employee hides a tape recorder and captures comments made during their employer’s private deliberations during a grievance and disciplinary hearing? Is that evidence admissible in an employment tribunal? This was the issue to be determined in Punjab National Bank v Gosain.

The Principle

The use of covert surveillance evidence is often admissible in tribunals (remember the council worker caught playing squash on council time?). Tribunals have a wide discretion to admit such evidence despite how distasteful it may be. This approach has been further supported by the EAT in Punjab National Bank.

In this case the EAT stated the correct test in determining whether such evidence is admissible is to undertake a balancing exercise. Setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in an internal grievance/disciplinary context.

The Practice

Employees will often try hard to use whatever means they can to prove their point. Secret recordings are just one way they will do this knowing a tribunal may well consider such evidence. So the best advice we can give is that in any meeting (including private meetings) you say nothing which you would not want the employee (or indeed the tribunal) to hear. Act professionally at all times and then it will not matter whether covert recordings are produced. In fact, if your policies state meetings should not be recorded and this is ignored by an employee then this could be helpful when trying to discredit them as a witness.

For more information, help and advice please contact Tim Davies on 0191 211 7927.