If an employee secretly records private discussions, will the tribunal allow this evidence to be heard?
In this age of social media and smart phones, many employers are concerned about employees making secret recordings of meetings – indeed it is not uncommon for disciplinary policies to make it clear that secret recordings are not allowed. What will happen though if in a subsequent tribunal claim an employee seeks to introduce into evidence recordings that were made without the employer knowing.
In the case of Punjab National Bank v Gosain, the EAT had to consider whether to uphold a tribunal decision that covert recordings made by an employee of both the public and private discussions of her employer during grievance and disciplinary hearings were admissible.
The employee in this case was employed by the Punjab National Bank for just under two years. She resigned some 18 months after starting her employment and brought a number of claims against her employer – constructive unfair dismissal, sexual harassment and sex discrimination.
Prior to her resignation, the employee had attended a grievance hearing in November 2012 and a disciplinary hearing in January 2013. In both instances and without her employer’s knowledge, she recorded both the public and private conversations of her employer. This only amounted to about 15 minutes at the grievance stage and 20 seconds at the disciplinary stage. When the employee admitted these recordings into the tribunal hearing, the employer objected to the private contents of these recordings. The private comments that were allegedly recorded included the managing director giving an instruction during the grievance process to dismiss the employee and also the grievance hearing manager saying that he was deliberately skipping the key issues raised in the employee’s grievance letter.
Tribunals generally have a wide discretion to determine whether evidence is admissible and if relevant, evidence will usually be admitted. There had been a previous decision where the EAT held that private deliberations of a disciplinary panel were not admissible. However in this case, the EAT upheld the tribunal decision which had distinguished the earlier case by saying that the comments that were made in this situation fell beyond the usual deliberations of a decision panel.
Does this help employers?
This decision is a useful warning to employers to be careful about what is said during a disciplinary or grievance process. If discussions stray beyond the matters in hand and are recorded, this evidence may be admissible, regardless of what any policy may say. In this day and age of social media and smart phones, employers need to be mindful that employees may be able to record decisions. If private discussions need to be held, employers may wish to move to a separate room for these discussions to take place without the fear of anything being recorded.
What we can do for you
Disciplinary and grievance issues can become complex and very personal. We can help guide you through the process and point out the traps that may catch out the unwary.