An employee seeking to prove misconduct or unpleasant behaviour by colleagues might try to catch them in the act by obtaining a recording of the offending behaviour. Employers and the courts increasingly have to grapple with the use of covert recordings and when they should be admitted as evidence.
A case which has settled recently in which an executive director at the investment bank, Goldman Sachs, secretly recorded her colleagues to support claims of discrimination highlights the risks and issues thrown up by employee recordings.
Covert recordings at work raise issues about privacy and the rights of those who have been recorded. An employee who is covertly recorded by a colleague may argue that obtaining and using the recording is in breach of their right to privacy under Article 8 of the European Convention on Human Rights.
An Employment Tribunal has a wide discretion as to the evidence it will consider. If evidence is obtained by deception, it may be excluded as a matter of public policy or because admitting it would breach human rights legislation.
However, previous decisions have indicated that the Employment Tribunal is likely to allow evidence of this nature if it is relevant to significant issues in the case. Even where a recording refers to private discussions, the Employment Tribunal may still admit the recording if it shows evidence of discrimination.
We previously reported on the case of Punjab National Bank (International) Limited and Others v Gosain in which the Employment Appeal Tribunal held that covert recordings of private discussions relating to a disciplinary matter were admissible as they went further than simply deliberating the decision and showed that attitudes toward the employee were tainted by discrimination.
Goldman Sachs case
Sonia Pereiro-Mendez, an executive director at Goldman Sachs, brought a claim for sex and pregnancy and maternity discrimination against the investment bank and three of its senior management.
Mrs Pereiro-Mendez alleged that she was denied millions of pounds in bonuses after she became pregnant and was subjected to “gratuitous and implicitly derogatory” comments by her colleagues. Mrs Pereiro-Mendez intended to rely on secret recordings of her colleagues in support of her claim.
The bank was due to put forward evidence at a hearing last week to demonstrate why Mrs Pereiro-Mendez did not merit the bonuses she was seeking on the basis of her performance. However, we understand that the parties reached a settlement.
Practical points for employers
This case is a reminder to employers that practical steps should be taken to try to prevent covert recordings being made and to reduce their impact.
Covert recordings of ad hoc conversations are likely to be more damaging than those made during formal meetings in which minutes would ordinarily be taken. Employers should therefore ensure that employees are aware that they are not permitted to make any secret recordings in the workplace. This should be set out in writing in employment contracts and it should be made clear in the disciplinary policy that doing so will be treated as serious misconduct, indicating that dismissal may be a consequence.
Whilst such wording will not of course prevent recording from happening, it may deter such conduct and, even if it does occur, is likely to bolster an employer’s position if there is an argument about admissibility of recorded evidence.
Employers should ensure that managers appreciate the risks of covert recordings and encourage them to avoid saying anything which may suggest discrimination. Ideally, discussions in the workplace should be professional at all times. However, where frank discussions are necessary, these should be conducted in a private room away from other colleagues to limit the possibility of such comments finding their way into a court room.
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