In the case of Punjab National Bank -v- Gosain, the EAT was asked to consider the discrete issue of whether covert recordings of internal disciplinary and grievance hearings were admissible evidence in employment tribunal proceedings.
Prior to her resignation, the claimant attended a grievance hearing on 7 November 2012 and a disciplinary hearing on 15 and 16 January 2013. She recorded both ‘public’ and ‘private’ conversations connected with those hearings.
The respondents objected to the admissibility of the ‘private’ elements of the recordings which, the claimant alleged, captured inappropriate comments made about her whilst she was out of the room.
At a first instance preliminary hearing the employment tribunal ruled that the recordings were admissible at trial. The EAT agreed with this finding, commenting that the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context.
The EAT went on to endorse the tribunal judge’s distinction between the facts of this case and the previous case ofAmwell View School Governors and Dogherty. In Amwell, the tribunal ruled against admitting a covert recording of private deliberations on the basis that it was in the public interest for disciplinary officers to be satisfied that their full and frank deliberations would be conducted in private and remain private.
The distinction with Gosain was drawn on the basis that the comments that the respondents were alleged to have made in the latter case fell well beyond what could be considered to be legitimate private deliberations for the purpose of reaching a conclusion on the outcome of the claimant’s disciplinary/grievance.
The above facts potentially make for uncomfortable reading for employers. One practical step to avoid finding yourself in this situation is to prohibit all covert recordings in policies and procedures. However, even this will not deter all employees. A more robust approach is to advise managers to deliberate in a different room to that in which the disciplinary was held or to work on the assumption that they are being recorded and to remember that what they are saying may be admitted as evidence in a tribunal. It is noticeable that some employment tribunals remind parties not to record proceedings.