Secret Recordings

Secret recordings – are they admissible in tribunal?

If an employee secretly records private discussions, will the tribunal allow this evidence to be heard?

Issue 

In this age of social media and smart phones, many employers are concerned about employees making secret recordings of meetings – indeed it is not uncommon for disciplinary policies to make it clear that secret recordings are not allowed.  What will happen though if in a subsequent tribunal claim an employee seeks to introduce into evidence recordings that were made without the employer knowing.

Background

In the case of Punjab National Bank v Gosain, the EAT had to consider whether to uphold a tribunal decision that covert recordings made by an employee of both the public and private discussions of her employer during grievance and disciplinary hearings were admissible.

Facts

The employee in this case was employed by the Punjab National Bank for just under two years.  She resigned some 18 months after starting her employment and brought a number of claims against her employer – constructive unfair dismissal, sexual harassment and sex discrimination.

Prior to her resignation, the employee had attended a grievance hearing in November 2012 and a disciplinary hearing in January 2013.  In both instances and without her employer’s knowledge, she recorded both the public and private conversations of her employer.  This only amounted to about 15 minutes at the grievance stage and 20 seconds at the disciplinary stage.  When the employee admitted these recordings into the tribunal hearing, the employer objected to the private contents of these recordings.  The private comments that were allegedly recorded included the managing director giving an instruction during the grievance process to dismiss the employee and also the grievance hearing manager saying that he was deliberately skipping the key issues raised in the employee’s grievance letter.

EAT decision

Tribunals generally have a wide discretion to determine whether evidence is admissible and if relevant, evidence will usually be admitted.  There had been a previous decision where the EAT held that private deliberations of a disciplinary panel were not admissible.  However in this case, the EAT upheld the tribunal decision which had distinguished the earlier case by saying that the comments that were made in this situation fell beyond the usual deliberations of a decision panel.

Does this help employers?

This decision is a useful warning to employers to be careful about what is said during a disciplinary or grievance process.  If discussions stray beyond the matters in hand and are recorded, this evidence may be admissible, regardless of what any policy may say.  In this day and age of social media and smart phones, employers need to be mindful that employees may be able to record decisions.  If private discussions need to be held, employers may wish to move to a separate room for these discussions to take place without the fear of anything being recorded.

What we can do for you 

Disciplinary and grievance issues can become complex and very personal.  We can help guide you through the process and point out the traps that may catch out the unwary.

Cutting a long story short

Restrictive Covenants and Social Media

Can restrictive covenants still work in the digital age

Issue

Businesses often seek to protect their customer connections when an employee leaves.  During the course of employment, an employee is likely to build up important information and knowledge about an employer’s business.  When they move on, the former employer will usually seek to enforce any restrictive covenants to prevent the employee from using the knowledge or information that they have gained with them to profit a new employer.

Is this now more difficult when the relevant information/knowledge relating to the employer’s business which the employer is looking to protect is widely available on the internet and via social media?

Background

In a recent case, the High Court had to consider whether non-solicitation and non-dealing restrictions for an individual who was employed by an educational recruitment consultancy as a recruitment consultant were valid.

Facts

Ms Palmer was employed by a company called 4myschools as a recruitment consultant who matched teachers with schools in a particular area. Her contract contained restrictive covenants that applied for six months after her contract ended. The aim of these covenants was to prevent her from soliciting or dealing with teachers or schools with whom she had had contact in the 12 months prior to her departure.

After two years with 4myschools, she was offered a job as a senior consultant on a higher salary for a company called Sugarman Education which covered the same area as her previous role.  A short time later, it came to the attention of 4myschools that Ms Palmer was acting in breach of her restrictive covenants and they brought proceedings in the High Court seeking damages for breach of the restrictive covenants. They argued that they had business interests (referred to in the case as “proprietary interests”) to protect which were their trade connections with their clients and candidates. As Ms Palmer had built up close relationships with them, their concern was that she could take advantage of this at her new employer.

Ms Palmer and her new employer argued that

  • schools and teachers had no particular loyalty to any particular agency;
  • with the increasing use of the Internet and social media, all the relevant information was in the public domain and therefore could not be stated to be confidential to any particular agency;
  •  all schools in any event dealt with a number of employment agencies
  • nearly all teachers were registered with a number of different agencies at any one time in order to increase their employment prospects.
  • if any loyalty did exist, it was to a particular agency rather than a particular employee of an agency.

Court’s decision

The court upheld the claim for breach of contract and awarded damages of £7,040 to Ms Palmer’s previous employer.   Essentially, the court felt that 4myschoools did have a sufficient interest with regard to their trade connections and therefore it was entitled to enforce these restrictions to protect its interests.  The court recognised that whilst much of the information about teachers and schools was publicly available and that schools would generally use whichever agency could get them the best candidate, it accepted that clients do have a choice about which agency to contact and the relationship between a consultant and the client might sometimes be the deciding factor.

Does this help employers?

This decision will be welcomed by employers and of particular interest to employment agencies. Essentially, just because information may be widely available on social media does not mean that an employer cannot seek to protect its interests.   An additional comment was also made by the courts that they accepted that customer loyalty could indeed be fragile and with this in mind, it was therefore even more important for employers to try to protect their interests.

What we can do for you?

Whilst this is a helpful decision for employers, caution still needs to be exercised when considering what restrictive covenants to include in employment contracts. Simply putting in a blanket restriction without any thought as to what you are looking to protect runs the risk of making any restrictions invalid.

We can work with employers to establish exactly what you need to protect and how far to extend this protection.  We also support individuals in clarifying what actions may or may not be restricted.

Please contact Karin Henson at [email protected] for further information.

 

Employers Liability for their Staff

How far does an employer’s liability for their staff go?

How liable can an employee be for an employee’s actions?

Issue

Employers will generally be responsible for the actions of their employees while they are at work.  This is generally known as vicarious liability and it acts to apply strict no fault liability which in an employment context, can make an employer liable for wrongs committed by their employees. It does not however cover every action committed by an employee as there has to be some link between their actions and their employment.

Background

In the case of Mohamed v WM Morrison Supermarket, the tribunal had to consider whether Morrisons could be liable for a vicious attack carried out by one of their employees against Mr Mohamed.

Facts

The employee worked in the petrol station.  Mr Mohamed arrived at the filling station, checked his tyre pressure and then asked the employee if he could print up some documents form a USB stick.  The employee responded with abusive and racist language.

Mr Mohamed walked back to his vehicle but was followed by the employee who proceeded to punch and kick him.  The judge found that Mr Mohamed was not at fault and that the attack on him was “brutal and unprovoked”.

The court had to consider if there was a sufficiently close connection between what had happened in this case, namely the assault, and the employee’s employment by Morrisons.

The court held that just because the employee was required to interact with customers and the assault took place on Morrison’s premises was not enough to establish a close connection to his employment.  It found that the employee’s actions were motivated by his own personal reasons and not as a result of his employment.  The employee in his job was not required to try and keep order or exert authority over customers.

Does this help employers?

This decision will be welcomed by employers.  Whilst it may appear to have been fair and just for Mr Mohamed to have been compensated for the injuries he suffered from an unprovoked attack, that is not what the courts look at.

There has to be a close connection between the individual’s employment and what happened – just because the assault took place on the employer’s premises at a time when the employee was on duty, whilst relevant, will not necessarily mean that an employer will be vicariously liable for the actions of its employees.  Mere contact between a sales assistant and an employee will not of itself make the employer vicariously liable.  Each case will however turn on its facts.

What we can do for you

Vicarious liability can be a cause of worry to employers.  If an employee acts beyond the scope of their duties, we can help advise whether you are likely to be held vicariously liable  by carefully examining all the facts involved.

Please contact Karin Henson at [email protected] for further information.