JAPAN Law and Practice Contributed by: Hiroaki Matsui, Yukitsuna Takekoshi, Mari Ueki and Satoru Makino, AI-EI Law Firm
3.9 Minutes An interviewer should take minutes, and summarised minutes are allowed. Although the interviewer typically does not allow the interviewee to review the minutes, there are cases in which the interviewer strategically requests the interviewee to review the minutes and sign them. It is at the interviewee’s discretion whether they sign the minutes. However, once they sign the minutes, the evidentiary value in court is strengthened and the contents of such minutes are considered to be based on the interviewee’s actual intention (Article 228, para - graph 4 of Act No 109 of 1996 – the “Code of Civil Procedure”). The interviewer or an internal employee may take minutes, but in some cases they may hire a lawyer to take accurate and detailed minutes of the interview. 3.10 Recording The interview can be, and sometimes is, recorded. A transcript is usually not made; however, the employer may hire a third-party vendor to make a transcript in order for it to be used as evidence. Although some precedents have denied the admis - sibility of secret recordings as evidence (eg, Tokyo High Court judgment of 19 May 2016, Jurist No 1496, p4, Employee v Kanto Gakuin ), in most cases courts have found such recordings to be admissible as evi - dence. Recently, however, it has become common practice for interviewers to inform the interviewee that the interview is being recorded and to allow the interviewee to make their own recording upon request. When conducting interviews remotely, it is difficult to prevent secret recordings. Even if recording functions are disabled within the web-conference system, it is hard to prevent participants from recording the inter - view using external devices such as smartphones. The following measures can be considered as pos - sible responses: • establishing rules in advance prohibiting all record - ing or filming; • warning the participants that the secret recording and leakage of the information is strictly prohib -
attend, provided that the lawyer is clearly instructed not to interfere with the conduct of the interview. Unlike the supporter, who is usually a lay person, the lawyer owes a duty of confidentiality under the Attorneys Act and other regulations (Article 23 of the Attorneys Act). However, when an employer allows the lawyer to attend, it is advisable to warn the law- yer that a breach of such a duty may result in his/her misconduct and professional risk. 3.7 Information There is no specific information that the interviewers must provide to interviewees at the beginning and/or end of the interview, nor is there a Miranda-like warn - ing. However, an interviewer will typically explain that: • intentionally lying and/or concealing the facts and evidence will result in sanctions, including discipli - nary action; and • disclosure of the information outside the interview is prohibited. In addition, if the lawyer assumes the role of interview - er, it is common to clarify that they are conducting the interview either in a third-party capacity or as a legal representative of the company. If the lawyer partici - pates in an investigation in a neutral and third-party capacity, and declares such status to the interviewee, the lawyer should not be involved in the company’s actions against the interviewees (including disciplinary action and claims). 3.8 Stopping the Interview It is advisable for an interviewer to agree to stop the interview, taking into account the interviewee’s health condition. If the interviewer refuses to stop the inter - view, they may face allegations of unlawful arrest, imprisonment or harassment. However, it would be better to keep accurate and detailed minutes of the interview. If the interviewee suddenly changes their attitude and requests that the interviewer stop the interview after being asked an unfavourable question, the minutes can be used as evidence of what happened at the interview.
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