The decision-making panel in disciplinary and grievance hearings will often adjourn the meeting to discuss the matter while the employee (and any representative) is out of the room. Most disciplinary policies prohibit the recording of meetings by the employee but modern technology has made it increasingly easy for employees to secrete mobile phones or other recording devices in the meeting room to record the panel's discussions. Can such recordings be put before the tribunal at the final hearing?
In Punjab National Bank (International) Ltd and others v Gosain (UKEAT/0003/14), the Employment Appeal Tribunal (EAT) held that covert recordings made by an employee of the private discussions of the panel during the adjournments of her grievance and disciplinary hearings were admissible as evidence at a final hearing. This does not mean, however, that such recordings will always be admissible.
Employment tribunals have a wide discretion when deciding whether evidence is admissible and will usually allow evidence that is relevant to the issues to be considered at the hearing. However, even where evidence is relevant to the proceedings, the tribunal may decide to exclude it. In practice, this will usually follow an application by one of the parties and typical reasons for requesting the exclusion of evidence are that to do so would be in the interests of public policy (eg where the evidence has been obtained by immoral means) or where it has been disclosed late in the proceedings.
The leading case on admissibility of covert recordings in tribunal proceedings is Chairman and Governors of Amwell View School v Dogherty (UKEAT/0243/06) in which the EAT concluded that, while covert recordings were generally admissible, a recording of the private deliberations of the panel was inadmissible on the grounds of public policy. However, the EAT in that case commented that recordings of such deliberations might be admissible in some circumstances and gave an example of a case where the panel had given no reason for its decision and the covert recording indicated that the decision had involved discrimination.
Ms Gosain resigned from her employment with Punjab National Bank (International) Ltd (the Bank) in January 2013 and subsequently brought claims of constructive unfair dismissal, sex discrimination and sexual harassment against the Bank. Prior to her resignation, Ms Gosain had attended a grievance meeting and a disciplinary hearing with her employer. She secretly recorded both the discussions that took place while she was present and the private discussions of the panel while she was out of the room.
The recording of the grievance hearing (which lasted for about 15 minutes) contained an instruction from the Bank's managing director to dismiss Ms Gosain and the manager hearing the grievance stating that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter. The recording of the disciplinary hearing (which only lasted for about 30 seconds) suggested a sexual comment had been made about Ms Gosain during the adjournment.
The Bank objected to the admission of these recorded comments as evidence and requested that the tribunal exclude these sections of the recordings from the evidence to be heard at the final hearing.
Employment tribunal decision
In the employment tribunal, the judge ruled that the recordings were admissible on the grounds that the comments made did not constitute part of the deliberations of the panel, as they did not relate to the issues that the panel was considering (namely, whether Ms Gosain's grievances were made out and whether she was guilty of misconduct). The judge therefore concluded that the protection afforded to private deliberations under the Dogherty case did not apply to these comments and that the recordings could be heard at the final hearing in the matter. The Bank appealed to the EAT.
The EAT dismissed the Bank's appeal. His Honour Judge Peter Clark gave the judgment, stating that the key was for the tribunal to balance the general rule that any relevant evidence is admissible against the public policy interest in protecting the confidentiality of private deliberations of grievance/disciplinary panels.
As the comments did not relate to the decisions that the respective panels were required to make, they could not form part of the panels' deliberations and therefore fell outside the scope of the protection set out in Dogherty. The recordings would therefore be heard at the tribunal hearing, which would then consider if they were relevant to Ms Gosain's case.
This case highlights the point that, while covert recordings are not always viewed favourably by tribunals, they are not necessarily inadmissible and the tribunal has the discretion to allow the admission of covertly recorded evidence where it considers it relevant. It is generally advisable for a party in possession of covertly recorded evidence to seek the permission of the tribunal to admit it at the final hearing. Such an application should include a transcript of the recording and written reasons as to why it is relevant.
While the deliberations of the panel that relate to the issues being considered are likely to be inadmissible on the grounds of public policy, any comments or asides may not be covered and it is important that panels continue to act appropriately during any adjournment of a disciplinary/grievance meeting. In particularly sensitive cases, another option may be for decision makers to adjourn the meeting overnight and/or consider the outcome away from the meeting room in order to reduce the risk of their discussions being recorded by the employee.
It should also be noted that a prohibition on recording meetings in an employer's disciplinary or grievance policy will not prevent recordings being admissible in a tribunal.