Employers should ensure managers holding or attending disciplinary or grievance hearings with an employee are aware of the risk of making inappropriate comments whether publicly in the hearing or privately during breaks, given the possibility of comments being covertly recorded by the employee on mobiles or other devices and admitted in evidence by a tribunal.

In Punjab National Bank v Gosain, the EAT upheld a tribunal decision admitting in evidence covert recordings of private comments made by members of a disciplinary and grievance panel during a break in the proceedings. The comments were not a part of the panel’s deliberations in relation to the matters under consideration and therefore were not inadmissible. 

Although it would not prevent the tribunal exercising its discretion to admit covert recordings in evidence, it is prudent for employers to expressly prohibit the recording of proceedings without consent in their disciplinary and grievance policies; at the very least it may discourage such conduct.