It is the end of a grievance meeting, your employee has left the room and you breathe a sigh of relief as you relax in your chair, now knowing that your words and actions are no longer under scrutiny…
Unless, of course, your employee has been secretly recording your conversations!
It will doubtless come as a shock to many employers to discover that an employee may be able to rely in tribunal on covert recordings of their employer’s discussions. In the recent case of Punjab National Bank v Gosain, the employee recorded her employer’s deliberations publically during the grievance hearing and privately during an adjournment. The private recordings captured her employer making sexually offensive comments towards her and also suggesting that she should be dismissed.
The Employment Tribunal held that these discussions did not form part of the grievance deliberations. The Judge recognised that there was a need to strike a balance between the general rule of admissibility of relevant evidence, with the public policy requirement of having confidentiality in private deliberations. However, given the nature of the evidence in this case, the Judge did not believe there was any real public policy reason for protecting these conversations, and held that the recordings were admissible. This decision was upheld at appeal.
The Court found that this was clearly an instance where the comments made by the employer were so inappropriate and unrelated to the matter at hand that it was entirely within the interests of justice to have those recordings presented. However, it is still important to note that there is a balance to be struck when such evidence is being considered, and the employee will have the burden of having to show that the relevance of the evidence outweighs the integral principle of confidentiality.
Needless to say, employers should be alert to the dangers of covert recordings and take appropriate pre-emptive measures. Of course, the safest course of action is to behave professionally during any adjournments and keep discussions relevant to the matters at hand. We would also recommend that you consider the following:
- placing a ban or restrictions on having recording equipment in disciplinary/grievance meetings and have your handbook and policies amended accordingly;
- asking your employee to disclose whether they have such equipment with them;
- asking your employees to switch their phones and electronic devices off during the meeting;
- asking your employees to lock away their personal belongings in a separate room;
- Ensuring that your employee takes all their belongings with them when they leave the meeting; and/or
- holding adjournment discussions in a private separate office away from your disciplinary/grievance meeting room.
If you would like further advice on covert recordings or if you would like your disciplinary/grievance policies amended to specifically deal with this issue please do not hesitate to contact your legal manager.