Covert Recordings of Grievance and Disciplinary Hearings

In a further case on the admissibility as evidence before the Employment Tribunal (ET) of an employee's covert recordings of grievance and disciplinary hearings, the Employment Appeal Tribunal (EAT) ruled that not only those parts of the employee's recording that covered the meeting itself but also those relating to the private conversations of the members of the panel during a break in the proceedings could be admitted as evidence (Punjab National Bank (International) Limited and Others v Gosain).

Ms Gosain was employed by Punjab National Bank (International) Limited as a Customer Service Adviser from May 2011 until her resignation in January 2013. Following her resignation, she lodged ET claims alleging sexual harassment, sex discrimination and constructive unfair dismissal.

Prior to resigning, Ms Gosain had attended a grievance hearing and a disciplinary hearing and had recorded both 'public' and 'private' conversations connected with each. The bank objected to the admissibility of the private contents of those recordings as evidence in support of her claims.

In reaching her decision that the recordings of the private conversations were admissible, the employment judge distinguished the circumstances from those in the earlier case of Amwell View School Governors v Dogherty. In that case, the EAT had ruled that covert recordings of the panel's deliberations at a closed hearing were not allowed as evidence in support of the employee's claim of unfair dismissal because it was in the public interest that those taking part in the disciplinary process should comply with the basic ground rules relating to such hearings, which include the understanding that deliberations concerning the outcome of any such hearing should be held in private and remain private. In this case, however, the conversations were 'not part of the deliberations in relation to the matters under consideration'. One of the panel is alleged to have said that the Managing Director of the bank had instructed that Ms Gosain be dismissed and the manager hearing the grievance said that he was 'deliberately skipping certain key issues' raised in Ms Gosain's grievance letter. Furthermore, the judge could see no public policy reasons why the comments, even if they were made in private, should be protected rather than admitted as relevant evidence.

The bank challenged the employment judge's decision and lost. In the EAT's view, the judge had not erred in the distinction she had drawn between the circumstances in this case and those in Amwell, nor was her decision on the public policy interest point perverse. As regards the bank's argument that the order that all the private conversations be made available was too wide, the EAT was not persuaded that the order was excessive. It was for the full ET to assess their cogency and their bearing on the case.

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