When can an employee use covert recordings?

Punjab National Bank (International) Limited v Gosain | 2014

Ms G was subject to disciplinary and grievance proceedings. Before she resigned from the Punjab National Bank (International) Limited, Ms G recorded both the public and private discussions at both the disciplinary and grievance hearings.

The recordings allegedly evidenced, for example, instructions from the Managing Director of the Bank to dismiss Ms G, comments by the grievance chair that she was deliberately skipping key issues and other inappropriate comments.

Ms G brought claims against the Bank and intended to rely on the recordings of the private discussions in support of her claims. The Bank objected.

An employment tribunal decided all the recordings (public and private) could be relied on by Ms G. The Bank appealed to the EAT and they confirmed the decision.

In most cases an employment tribunal will not allow the use of recordings of private discussions to protect the right of employers to have full and frank discussions when deliberating. In this case, however, the Employment judge concluded that the comments fell ‘well outside the area of legitimate consideration of the matters which fell to be considered by the disciplinary and grievance panels’. As the comments did not form part of the deliberations there was no legitimate reason to prevent the recordings being used and Ms G could rely on them.

This is an increasingly common issue. We are often asked about recording meetings. Employers should include, within their policies, a statement that recording any meetings is not permitted. This will not prevent the employee making any recordings but it will deter some. More importantly, during the meetings and deliberations, employers should stick to discussing the issues. Recordings of comments made as part of legitimate deliberations are likely to be protected but, as evidenced by this case, a recording of anything else could be relied on by an employee.

From a practical point of view, it is worth using a different room for the ‘private’ deliberations. This will avoid the possibility of an employee leaving a recording device in the room during adjournments.