Watch Out! – Phones have ears…

Anna Moyle

An employee’s secret recordings of private discussions at disciplinary and grievance hearings may be admissible as evidence in subsequent tribunal hearings.

Can recordings of private discussions that have been made secretly by an employee who is taking part in a disciplinary or grievance hearing be used in an employment tribunal hearing?

In the recent case of Punjab Bank v. Gosain, the EAT decided that the answer is – “yes they can” – particularly if the panel members’ private comments were not part of their deliberations regarding the matters to be determined by them at the grievance and disciplinary hearings.

An employment tribunal has a wide discretion to determine whether evidence is admissible and, if evidence is relevant to the issues, will generally rule that it is admissible.  However, even where the evidence is relevant, it may rule that it is not admissible on grounds of public policy. In this case, the EAT balanced the general rule of the admissibility of relevant evidence against the public policy interest of preserving the confidentiality of private deliberations.

Ms Gosain resigned from the bank in 2013.  Prior to her resignation she attended a grievance hearing and a disciplinary hearing. She secretly recorded both the public discussions at the hearings and the private conversations of the panels. The comments alleged to have been made during the private conversations included the managing director giving an instruction to dismiss Ms Gosain, and the manager who heard the grievance stating that he was deliberately ignoring key issues raised by Ms Gosain as part of her grievance.

Ms Gosain subsequently disclosed the secret recordings to the bank as part of her employment tribunal claims of sexual harassment, sex discrimination and constructive unfair dismissal. The bank objected to the admissibility of the recordings of the private panel discussions, but the employment tribunal disagreed and admitted the evidence.

In its appeal against the employment tribunal’s decision to allow the recordings to be used, the bank referred to the EAT case of Chairman and Govenors of Amwell View School v Dogherty where it was held that covert recordings of an actual disciplinary hearing could be allowed, but (for public policy reasons) not of the disciplinary panel’s private deliberations.

In dismissing the bank’s appeal, the EAT held that the tribunal was right to distinguish the current circumstances from the Dogherty case and emphasised that the private comments recorded did not form part of the panel’s deliberations in respect of the matters to be decided by them.

Implications

So what can employers do?  The answer is probably “not a lot” – other than always to remind the panel members at disciplinary and grievance hearings of the risk of any of their conversations being recorded and to act accordingly.

It will still be prudent for employers to ensure that disciplinary and grievance policies contain express prohibitions against recording hearings without consent, but this would not have assisted the bank in this case, and the recordings would still have been admissible. In an age where employees can record meetings with their mobile phones, employers just need to be alert to the risk and make sure any panel discussions, private or otherwise are appropriate.