Minding your Ps and Qs — covertly recorded comments can come back to bite you
As the recent case of Punjab National Bank International Ltd and others v Gosain shows, employers and the courts are increasingly having to wrestle with covert recordings made by employees and when they should be admitted as evidence. The availability of ever-more sophisticated recording technology has enabled employees to record their colleagues and managers in both formal meetings, private meetings (which the employee would not normally attend) and even during ad-hoc encounters.
Employers need to make sure that senior staff and managers appreciate these risks and that their contracts and handbooks keep up with these changes in behaviour.
The employment tribunal has a wide discretion as to the evidence it can allow into the court room. In doing so, it needs to weigh up the public interest in allowing private deliberations to remain private against the need to have available all the evidence that is necessary to resolve the issues in a case justly. The fact that evidence relates to confidential matters or is embarrassing to the employer will not prevent it being admissible…
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