Caution to employers during ?private? conversations at disciplinary meetings
28 April 2014
Covert recordings of discussions at grievance and disciplinary were held as admissible as evidence in tribunal claim.
Pinsent Masons looks at a recent case in which an employee's covert recordings of both public and private discussions at her grievance and disciplinary hearings were held to be admissible as evidence in her subsequent tribunal claim. Highlighted at the end of this summary is what this means for employers.
Admissibility of evidence
Tribunals have wide discretion to determine what will be admissible at tribunal (generally that which is relevant to the issue being determined). However, even relevant evidence may be excluded on certain grounds, one of which is that the evidence should be excluded on public policy grounds. Other examples may include where the evidence has been disclosed late in the proceedings or, if admitted into evidence, would be in breach of Human Rights law, e.g. the right to privacy.
In this case, Punjab National Bank (International) Ltd v Gosain (EAT) the evidence in question was covert recordings that the employee, Ms Gosain (G) had made of her disciplinary and grievance hearings with her employer, Punjab National Bank (International) Ltd (P).
G attended both a grievance hearing and a disciplinary hearing. G secretly recorded both the hearings and the panel's private deliberations when she had been asked to leave the room. When G later resigned and brought a tribunal claim against P, she sought to rely on the recordings as evidence in support of her claim. The recordings were very damning and included wholly inappropriate and personal comments made about G as well as comments by P's Managing Director during G's grievance hearing, instructing that G be dismissed and stating that he was deliberately skipping the key issues raised in the Claimant’s grievance letter, namely that she was not being allowed a proper lunch break and issues around her pregnancy.
P unsurprisingly sought to exclude these recordings from evidence. However, an employment judge found that the recordings were admissible and the Employment Appeal Tribunal (EAT) upheld this decision.
We previously reported on the case of Chairman and Governors of Amwell View School v Dogherty in which it was decided that only the parts of an employee's covert recordings where the employee was present can be admitted as evidence.
The EAT held that there was an important public interest in parties before disciplinary and appeal proceedings complying with the “ground rules” upon which the proceedings in question are based. The understanding that such deliberations would be conducted in private and remain confidential was held to be essential in ensuring a full and frank discussion between those tasked with making a decision.
So why was that not the case for P here? The employment judge (and the EAT on appeal) found that the alleged comments captured by the recording were not part of the deliberations of the panel. The comments did not constitute the type of private deliberations which the parties would understand to take place in relation to the matters in question at the grievance and disciplinary hearing, i.e. the type of discussions which would be protected by the approach laid down in the Dogherty case.
In light of the nature of the comments, the EAT found no reason why, despite being private, the comments should be protected and given the relevance of the comments to G's claim, the recordings were therefore held to be admissible.
What does this mean for employers?
Covert recordings of disciplinary or grievance hearings may be admissible in evidence should an employee later bring a tribunal claim. There is scope to exclude such recordings on the "ground rules" basis established in Dogherty. Nevertheless, this case clearly highlights the limitations of such an exclusion.
Employers, through their disciplinary and grievance policies, could expressly prohibit the recording of meetings. However, this does not necessarily prevent an employee from making a recording covertly and given the prevalence of employees' carrying mobile phones and other devices with recording functions, employers should be alert to this possibility.
Employers should of course ensure that good practice and appropriate procedures are followed at all times during meetings to ensure that any covert recording made would not be damaging evidence.
Employers should also consider practical ways in which they can avoid private deliberations being recorded such using a separate room in which to have such conversations or, when asking the employee to leave the room, ensuring that they take all belongings with them to avoid them surreptitiously leaving behind a recording device.