Springhouse Solicitors

Secret recording- admissible evidence?

Was an employee allowed to use a secret recording made, while she was not present, of the deliberations of her employer at a disciplinary hearing?

Yes it was, according to Punjab National Bank v Gosain.

Background

Ms Gosain secretly recorded the deliberations of a panel hearing her grievance and disciplinary allegations while she was out of the room. She had left the recorder behind when she left the room.

She wanted to rely on the recording to prove her case for unfair dismissal and discrimination. The comments she recorded showed her MD giving an instruction to dismiss her, and her manager saying that the issues she had raised around her pregnancy had been deliberately disregarded in doing so.

The legal issue

Covert recordings are admissible as evidence in tribunal proceedings, but only where they are relevant, and where the public interest over-weighs the privacy of the individuals concerned.

In this case, the comments were not sufficiently private in nature for the recording to be inadmissible, and Ms Gosain was able to reply on it in evidence.

Implications for businesses

Employers should ensure that their disciplinary and grievance procedures prohibit the use of recordings without consent.

Still, this will not stop recordings that are being made admissible, and employers should therefore be careful in what they say – even in private – when they are deliberating on sensitive matters affecting employees. They should assume that everything might be recorded, especially as this is now so easy to do.