INDIA Law and Practice Contributed by: Preetha Soman, Madhur Khandelwal, Aishwarya Maria Manjooran and Rebecca Thomas, JSA Advocates & Solicitors
ue and/or does not co-operate in the interview, the interview may need to be closed. In such instances, however, the investigation will continue, utilising the available evidence and testimony. 3.9 Minutes Documenting Minutes Though not legally mandated, minutes of interviews are typically recorded. Summarised minutes are also acceptable so long as they accurately reflect the dis - cussions. This documentation helps ensure transpar - ency and can be important for future proceedings or reviews. It is also a recommended practice that interviewees review and sign-off on the minutes. This allows the interviewees an opportunity for providing any clarifi - cations or corrections. The written acknowledgement also serves as a formal confirmation that they have reviewed the minutes, there was no coercion, and that the information represents the matters discussed dur - ing the interview accurately. It is not necessary for an external party to take down the minutes. In fact, for reasons related to confiden - tiality and data security, it is often considered more appropriate to have an internal stakeholder handle the task of recording the minutes. 3.10 Recording Recording of an Interview Interviews conducted as part of an investigation pro - cess may be recorded. However, since India recognises the right to privacy as a fundamental right, employers will need to strike a balance between the need to record interviews and an individual’s right to privacy. Therefore, it is advis - able to notify the employees prior to commencement of the interview or obtain their consent. The transcript is to be shared strictly on a need-to- know basis. Only the investigating officers directly involved in the investigation process should have access to it. Owing to confidentiality and data protection concerns, as a matter of general practice, such transcripts are
not provided to the interviewees, unless specifically asked for. If an interview may not be recorded in virtual settings, the organiser will normally disable any platform-based recording functions for all users. However, in a virtual environment it is not technically possible to guarantee that a participant is not privately or secretly making their own recording. This is where the NDA becomes crucial. Under the NDA (refer to 2.3 Confidentiality Agreements and NDAs ), participants are contractu - ally bound not to record, store, or disclose any part of the interview. If an unauthorised recording is later discovered, this would constitute a breach of the NDA and disciplinary action can be initiated against the defaulter besides pursuing legal action for breach of contract. 3.11 Other Fact-Finding Collecting and Preserving Evidence In addition to conducting interviews, investigative officers may resort to various methods of fact-finding. This includes: • examination of relevant documents such as emails, memos, reports, and personnel files; • review of footage from Closed-Circuit Television (CCTV) cameras; and • monitoring and analysing activities conducted on employer-owned computer systems and devices. The engagement of experts also adds immense value to the investigation; for example, the role of experts in computer forensics gains significance where involve - ment of multiple parties is deciphered or where the source of the misconduct or the duration for which such irregularities have been undertaken needs to be specifically traced by way of digital evidence recovery. Likewise, a forensic analysis could be undertaken to trace financial transactions, especially in those inves - tigations uncovering financial fraud. In order to preserve any physical or digital evidence, it will be essential to maintain a clear chain of custody and clearly document when and how evidence was collected, who handled it and where it was stored in order to ensure its integrity.
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