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Employment E-Bulletin May 2014

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Covert recordings in the workplace

Recently, we have seen an increase in the number of cases involving covert recording. This usually takes the form of an employee recording a face to face meeting (for example a grievance, investigatory or disciplinary meeting) without the knowledge of the employer.

Improving technology means that people can record conversations on their mobile phones but also via other means such as key fobs and USBs.

This article looks at the key issues for employers with respect to covert recordings.

Can you stop an employee from making a covert recording?

We are often asked by employers if they can stop employees from recording internal meetings.

In practice, it is almost impossible to stop an employee from recording an internal meeting if they wish to. You can, of course, request that they do not record the meeting and you can include as part of your policies on disciplinary and grievance matters that such meetings should not be recorded however in reality it is difficult to enforce these requests.

Are covert recordings admissible in Employment Tribunal proceedings?

Employers often ask us if covert recordings can be automatically disregarded or deemed inadmissible in Employment Tribunal proceedings.

Following the recent case of Punjab National Bank and Others v. Ms S Gosain UKEAT/003/14/SM it appears that covert recordings will normally be admissible as evidence unless there is a good public policy reason not to.

The case concerned an employee, Ms Gosain, who was employed by the bank. Ms Gosain attended both a grievance hearing and a disciplinary hearing with the bank. As is usual in meetings of this nature, parts of the meeting involved all of the parties (including Ms Gosain) discussing matters. There were also periods where Ms Gosain was asked to leave the room and private discussions between managers took place. Ms Gosain made covert recordings of the entirety of the meeting (including the private discussions of managers whilst she was not in the room).

Ms Gosain brought claims against the bank for sexual harassment, sex discrimination and constructive unfair dismissal and disclosed the covert recordings as part of those proceedings. The bank objected to the admissibility of the private contents of the recordings. The recordings included a senior manager giving a direction to dismiss Ms Gosain, acknowledgment by the manager hearing Ms Gosain’s grievance that he was deliberately skipping the key aspects of her grievance and the manager hearing the disciplinary making vulgar statements of a sexual nature about Ms Gosain.

The Employment Tribunal permitted the entirety of the recordings to be admitted (both public and private) on the basis that they “were not part of the deliberations in relation to the matters under consideration”.

As demonstrated by this case, the Employment Tribunal has a wide discretion to determine admissibility of evidence. In practice, an Employment Tribunal will generally decide that evidence is admissible if it is relevant to an issue between the parties.

The case of Vaughan v London Borough of Lewisham and others UKEAT/0534/12 held that while the practice of covert recordings is distasteful, this does not necessarily render evidence obtained in that way inadmissible. However, where a party is seeking to rely on covert evidence, it should make a specific application to the Tribunal seeking permission to do so.

Whilst this approach has been laid down as best practice, it is not necessarily a requirement and the Court will have a wide discretion as to what evidence is admissible and how admissible it is is determined. It is clear from recent case law that much will depend on the Court’s perception of the parties.

Practical tips for employers

• An employer should ensure that it’s disciplinary and grievance procedures explicitly prohibit covert recordings in disciplinary and grievance meetings. In addition, employers may wish to consider asking employees to switch off mobile phones and electronic devices at the start of meetings. It must be noted however, that this will not assist an employer in preventing the admissibility of such evidence. Whether conversations that are covertly recorded are admissible in evidence at any subsequent Tribunal hearing will always be at the discretion of the Tribunal.

• Be aware that there is always a possibility that a meeting may be recorded regardless of policy documentation. We would strongly advise that any discussions between managers during breaks in proceedings are conducted in another room where said managers can be sure that there is no recording device present. Care should also be taken to ensure that discussions at, and relating to, such hearings are appropriate.

• Keep notes as backup evidence. When deliberating in private those making decisions may wish to consider keeping a confidential note of their reasoning. Whilst this would not be provided to employees, it could be produced to defend any allegations if the matter proceedings to any litigation.

• Managers who are carrying out meetings of this nature should be trained in how such meetings should be conducted and the potential risks associated with the meetings and the processes themselves. This should assist managers to present themselves in the best possible way.

If you have any queries or concerns in connection with any of the above, please feel free to contact either Patrick Stewart  or Francesca Wild in the employment team

News and Reminders

• Don’t forget that Acas Early Conciliation becomes compulsory from Tuesday 6th May 2014.

• Beccie Raven joined the Employment Team as PA on Tuesday 22nd April 2014. You can contact Beccie at beccie.raven@twmsolicitors.com or by calling 01483 752784.

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