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LEGAL CORNER: To record, or not to record?

27th Jun 2014
LEGAL CORNER: To record, or not to record?

Nearly every member of the workforce these days has a smart phone. Nearly every phone has the capability to record. This makes it increasingly easier for employees to make covert recordings of meetings or discussions.

There has been an increase in the number of claims brought forward by employees where they rely on such covert recordings as part of their evidence. Often, these will challenge the employer’s note of a particular meeting. However, some employees have gone a step further: when they are invited to a disciplinary or grievance hearing, they have not only recorded the hearing itself, but have then covertly recorded the discussions and deliberations of the panel which took place afterwards. This practice has, unsurprisingly, been described by the courts as ‘distasteful’. But the question is, can these kind of covert recordings be relied upon?

In a case some years ago (Chairman & Governors of Amwell View School v Dogherty [2006] UKEAT 0243/06/1509) where just such a situation arose, the Employment Appeal Tribunal made a distinction between the ‘open’ parts of the hearing, where all parties had an expectation that what they said would be recorded in some form, usually in writing, and the private deliberations, when the panel had an expectation of privacy. The Appeal Tribunal noted that such privacy facilitated a full and frank exchange of views, and a failure to maintain respect for the privacy of such discussions could inhibit open discussions between the decision makers. They therefore allowed the recordings of the open part of the hearing to be relied upon in evidence, but not the private deliberations.

However, in the recent case of Punjab National Bank (International) Ltd v Gosain [2014] UKEAT 0003/14/0701, this principle came under challenge. Ms Gosain had brought a case of sexual harassment, sexual discrimination and constructive unfair dismissal against her employer. Prior to resigning, she had raised a formal grievance about her complaints and had attended both grievance and disciplinary hearings. She had made covert recordings of both the hearings themselves and the private deliberations thereafter. During those deliberations, one member of the panel made a comment that the bank’s managing director had given an instruction to dismiss Ms Gosain. The manager hearing the grievance commented that he was deliberately skipping the key issues that had been raised in the grievance letter (relating to Ms Gosain’s pregnancy). The manager hearing the disciplinary case also made a derogatory and sexually offensive remark about Ms Gosain’s relationship with another employee.

Ms Gosain sought to rely on these recordings as part of her claim and the bank objected on the basis that they related to the private deliberations of the panel and should be excluded. The judge in the Employment Tribunal decided that the recordings in their entirety were admissible, on the basis that the comments made did not relate to the matters under consideration by the disciplinary and grievance panels. The comments, especially relating to the alleged instruction to dismiss, were so extreme that it was not appropriate to maintain confidentiality. The bank appealed, but the decision was upheld by the Employment Appeal Tribunal. They noted that there was a need to strike a balance between the general rule to admit evidence that was relevant, and the public interest in preserving the confidentiality of private deliberations. Where, as here, the comments went beyond what would normally form part of private deliberations, and especially where that evidence gave rise to allegations of discrimination, it was appropriate for them to be assessed by the employment tribunal hearing the case and for the managers concerned to be asked about them in evidence.

It is inevitable that, as a result of this decision, more and more employees will attempt to covertly record the private deliberations of their employer, in the hope of obtaining some evidence to support any later case. Employers however have also become more aware to this and often retire to another room to deliberate. Some employers have also amended their policies to make clear that covertly recording both open and private parts of hearings is expressly prohibited, and that breach of the same can lead to sanction up to and including dismissal, although such a provision does not assist where someone has already resigned or been dismissed. Ultimately, the most important lesson to be drawn from this case is that managers making decisions need to ensure that they act appropriately at all times and ensure that they do not make statements which might compromise their positions later.

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