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
(Bank) v Gosain (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 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
(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
emplyee'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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.