The claimant in Punjab National Bank (International) Ltd v Gosain secretly recorded the conversations of members of the panels at grievance and disciplinary hearings she had attended. Some of the recordings were of comments made about her during breaks in the hearings, when she was out of the room. She wanted to use the tapes as evidence in a tribunal claim she made, after she had resigned, alleging sexual harassment, sex discrimination and constructive unfair dismissal. 

The employers objected to the admissibility of their private deliberations at the hearings, based on the public policy argument that disciplinary panels should not be discouraged from having full and frank exchanges of views in an attempt to reach the right decision.

At a preliminary hearing the Tribunal ruled that the recordings were admissible at trial and the EAT has upheld this decision. The general rule is that evidence should be admissible if it is relevant and although public policy considerations can come into play, in this particular case the comments which the claimant alleged were made when she was not present were not part of the panels' deliberations in relation to the matters under consideration. The situation was therefore different from that in an earlier case, Amwell View School Governors v Dogherty, in which an employee was not allowed to produce recordings of panel deliberations in evidence.

The ability to record discussions is clearly much easier than it was; it may be worth employers making it clear in their policies that covert recording in the workplace is not acceptable.  Although they will not necessarily be able to rely on this to prevent evidence being used in a tribunal, it should make it easier to address a breach as a conduct issue.