As a general rule the private discussions of disciplining managers outside of a disciplinary hearing should not be admissible in tribunal proceedings. However, this is not always safe to rely on. To begin with, an employee’s recording of the disciplinary hearing itself will probably be admissible and now there is also a real possibility that the employer’s deliberations outside the hearing will be admissible too.
Cases over the last few years have given examples where such evidence has been allowed. This can be when there is a need to test the motive behind possible discrimination and when the managers’ comments go beyond the subject of the disciplinary hearing. In the recent case of Fleming v East of England Ambulance Service NHS Trust, the employee “inadvertently” left his mobile phone on record when he went out of the room and the panel then discussed the matter. The Employment Appeal Tribunal held that the circumstances were exceptional but once again allowed the evidence. The employee had listened to the recording and then commented on it before the decision was made to dismiss him. The recording became an intrinsic part of the case.
Disciplining managers are advised to be very careful as to what is said and to be alert to the possibility that the meeting will be recorded. In practical terms, keep an eye out for mobile phones and also instruct the employee not to make a recording. The ultra-cautious may also want to move to a different room when deliberating.