Covert Recordings of Disciplinary and Grievance Hearings Could be Relied On

An employee who made covert recordings of both public and private panel discussions at grievance and disciplinary hearings has been allowed to rely on them as evidence in her subsequent sex discrimination claim.

In Punjab National Bank (International) Limited v Gosain, G attended a grievance and disciplinary hearing and secretly recorded both the public discussions at the hearings and the private conversations of the panels. She sought to adduce the recordings in evidence in her employment tribunal claim. Her employer objected to the recording of the private discussions being admitted, which ran for 15 minutes at the grievance hearing and 30 seconds at the disciplinary hearing. The private panel comments at the grievance hearing were alleged to have been recorded during a break and included the bank’s managing director giving an instruction for G to be dismissed and the manager hearing the grievance saying he was deliberately skipping the key issues raised by G in her grievance – that she was not allowed a lunch break and issues concerning her pregnancy.

The employment tribunal ruled the recordings were admissible in evidence and the Employment Appeal Tribunal upheld the tribunal decision. This case was different from Chairman and Governing Body of Amwell View School v Dogherty, where private deliberations of a disciplinary panel had been ruled inadmissible on public policy grounds. Here, the private comments of the panel were not part of the deliberations into the matters under consideration at the grievance and disciplinary hearings and were instead made in a break. There was therefore no public policy justification for excluding the evidence.

With developments in technology it is becoming increasingly easy for employees secretly to record a whole range of conversations in the workplace and then seek to use the recordings to support a subsequent employment tribunal claim. The fact that the recordings were made covertly is not, of itself, a ground for ruling them inadmissible and tribunals have a very wide discretion when deciding whether to admit evidence. Some employers state in their disciplinary and grievance policies that recordings are not be made. Whilst this may act as a deterrent, in reality an employee who ignores this and does make a secret recording is unlikely to be stopped by an employment tribunal from using it in evidence, although private deliberations of the panel when deciding the issues before it may be excluded on public policy grounds.

Perhaps the safest course is to adjourn to another room for any private deliberations or other breaks in proceedings and to be more guarded when it comes to discussions during breaks.