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Use of covert recordings in Employment Tribunal proceedings

It is a common misconception that covertly obtained evidence is inadmissible in Employment Tribunal proceedings. In fact, the tribunal has a wide discretion over what evidence can be considered. This was explored by the Employment Appeal Tribunal (EAT) in the case of Punjab National Bank (International) Ltd and others v Gosain.

Sexual harassment

Ms Gosain was employed by the bank from May 2011 until her resignation in January 2013. She issued a claim at the Employment Tribunal alleging sexual harassment, sex discrimination and constructive unfair dismissal.

During her employment, Ms Gosain attended a grievance hearing and a disciplinary hearing. At both these hearings she recorded without permission both the public conversations and private discussions between the panel members when she was not present in the room.

Grievance letter

In the course of the Employment Tribunal proceedings, Ms Gosain disclosed the secret recordings to the bank. The bank immediately objected to the admissibility of the private discussions between the panel members. These discussions ran for approximately 15 minutes at the grievance hearing and 30 seconds at the disciplinary hearing.

Among other things, the recordings exposed that the bank’s Managing Director had issued an instruction to dismiss Ms Gosain and that the manager hearing the grievance said he would deliberately skip the key issues raised by Miss Gosain in her grievance letter.

Employment Appeal Tribunal

At a first instance preliminary hearing, the Employment Tribunal was referred to the case of Chairmen and Governors of Amwell View School v Dogherty. In this case, the Employment Appeal Tribunal held that Ms Dogherty’s covert recordings of her disciplinary hearing were admissible as evidence before the tribunal. However, the covert recordings of private deliberations between the disciplinary panel, when Ms Dogherty was not present, were not admissible on the grounds of public policy.

Notwithstanding the decision in this case, the Employment Tribunal ruled that the entire recordings that Ms Gosain had disclosed were admissible at trial.

This case differs from the facts in Dogherty, as the private comments made by the panel members in that case involved deliberations that one would expect to take place in relation to a grievance or a disciplinary decision.

In this case, the instruction given to dismiss and a decision taken to ignore aspects of Ms Gosain’s grievance was not considered to be part of the private deliberations in considering the issues and making a decision in respect of the hearings.

The bank appealed.

Disciplinary procedures

The EAT agreed with Employment Tribunal finding and stated that the fact that the recordings were made covertly was not a ground for ruling them inadmissible. It commented that the correct test is to undertake a balancing exercise, setting out the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance or disciplinary context.

Guidance for employers on covert recordings

The case highlights and reinforces the point that covert recordings can be admissible as evidence at Tribunal. In practical terms if you are an employer you should:

  • Ensure that you have a policy that prevents employees from covertly recording any disciplinary or grievance meetings. Disciplinary action could then be considered if an employee breaches that policy;
  • Be alert to the fact that employees have the ability to covertly record meetings quite easily with the current increase in the use of smartphones. Therefore ensure that all discussions during and relating to a hearing are appropriate; and
  • Consider holding all private deliberations in another room.

For more information on this case or to discuss amending your policies to refer to cover recordings, contact Zeba Sayed by emailing zsayed@lyonsdavidson.co.uk or calling 0208 336 6942.

Posted on May 2nd, 2014 by Lyons Davidson