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Covert Employee Recordings: How admissible are they?

Covert recordings taken by an employee during a disciplinary or grievance hearing have for some time been a bugbear for employers and a potential ace in the hole for employees.

Many of you can doubtless imagine the scene in such hearings; ‘Doreen from HR’ frantically scribbling down (in her best shorthand) the heated exchanges between a disgruntled employee and perhaps an even more disgruntled manager, both doing their utmost to keep some semblance of professionalism and decorum as the accusations (and ubiquitous denials) fly.

While that may at first appear to be a somewhat stereotypical view of how such hearings are conducted in the modern UK workplace, our personal experience on hearing the covert recordings taken by some Claimants, paints a someone different picture.

The key question historically put to us regarding such recordings has been and probably always will be, are they admissible as evidence?

The general position with such matters has more or less always been that despite their ‘covert’ nature, these recordings if relevant and capable of being probative evidence for whichever party was seeking to rely on them, would be admissible.

This question was recently examined by the Employment Appeal Tribunal (EAT) in Punjab National Bank v Gosain, the EAT held they were. This was despite the Appellant Bank and individual Appellants seeking to rely on principles espoused the previous landmark ruling on covert recordings (Amwell View School Governors v Dogherty). In the latter case it was said that private deliberations held behind ‘closed doors’ should not be admissible. In the Gosain case the recording device had been left running whilst the Claimant was out of the room at which point disparaging sexual comments were made about her and picked up on the recording.

The EAT however stated that the proper admissibility test should in effect be a balancing exercise, setting the general rule on admissibility of evidence against the public policy interest of keeping private deliberations private in the context of grievances and disciplinaries. In Gosain, as the comments made in ‘private’ fell far outside the area of legitimate consideration, that is matters discussed in private that pertained to the decision at hand, they were ruled admissible.

Conclusion

So what then can an employer do against a workforce armed to the teeth with gadgets that record every sound in crystal clear, high audio? Quite simply nothing. That is say nothing that you would not wish to be repeated back to you by a Claimant’s Barrister at a full tribunal hearing.

If you have a question relating to admissibility of evidence please do not hesitate to contact me on 0113 350 4030 or at samira.cakali@scesolicitors.co.uk


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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