The Curious Case of Covert Recordings
3rd July 2014
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With the steady rise of smartphone ownership it's easy to create covert recordings in the workplace, but can they be used as evidence in the eyes of the law? 

On the one hand, covert recordings can seem like an effective piece of evidence for use in legal cases. However, recent cases have questioned  the admissibility of using such recordings as evidence. TWM Solicitors, Wimbledon, use the case, Punjab National Bank and Others v. Ms S Gosain to highlight the potential problems of using such evidence.

The case concerned an employee, Ms Gosain who was employed by Punjab National Bank. During a disciplinary and grievance meeting, Ms Gosain made covert recordings before bringing claims against the bank for sexual harassment and constructive unfair dismissal. These recordings were both “public” and “private” – the “private” sections being conversations that were secretly recorded during breaks in proceedings.

The Employment Tribunal defended their decision to permit the recordings as evidence because, “they were not part of the deliberations in relation to the matters under consideration”. In general an Employment Tribunal will decide that evidence is admissible if it is relevant to an issue between the parties.

But where does this leave employers? Could we see a rise in the use of mobile devices to record “private” conversations?

TWM Solicitors offers some practical tips to employers who are concerned about the use of covert recordings:

1. Employers can prevent covert recordings being made in disciplinary and grievance procedures by requiring that all phones be switched off and electronic equipment left outside during proceedings.

2. Any discussions between managers during a break in proceedings should take place in a separate room and be relevant and appropriate.

3. Keep notes as backup evidence for the reasoning behind decisions.

4. Managers carrying out meetings should be trained in the best way to conduct them. This should ensure that managers present themselves in the best possible way.

For more information on this matter, whether you’re an employer or employee, contact TWM Solicitors in Wimbledon.

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Andrew M

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