Using Secret Recordings of Disciplinary and Grievance Hearings – What’s the Legal Position?

With technology developing all the time it has never been easier for employees to make secret recordings of disciplinary and grievance hearings and then seek to use the recordings to support a subsequent employment tribunal claim. Whilst employers may not be too concerned about recordings being made of those parts of the hearing where the employee is present, it’s a whole different ball game when it comes to private conversations, whether they take place during a break in the proceedings or when deliberating over the decision. You might think that employment tribunals would not be prepared to allow an employee to rely on recordings made in such an underhand fashion, but you would be wrong as the recent decision in Punjab National Bank (International) Limited v Gosain demonstrates. 

G attended a grievance and disciplinary hearing and secretly recorded both the public discussions at the hearings and the private conversations of members of the panels during breaks in the proceedings. She sought to adduce the recordings in evidence in her sex discrimination and sexual harassment employment tribunal claims. Her employer objected to the recording of the private discussions being admitted. These ran for 15 minutes at the grievance hearing and 30 seconds at the disciplinary hearing. The private panel comments at the grievance hearing included the bank’s managing director giving an instruction for G to be dismissed and the manager hearing the grievance saying he was deliberately skipping the key issues raised by G in her grievance – that she was not allowed a lunch break and issues concerning her pregnancy.

The employment tribunal ruled the recordings were admissible in evidence and the Employment Appeal Tribunal (“EAT”) agreed. This case was different from Chairman and Governing Body of Amwell View School v Dogherty, where private deliberations of a disciplinary panel had been ruled inadmissible on public policy grounds. Here, the private comments of the panel were not part of the deliberations into the matters under consideration at the grievance and disciplinary hearings and were instead made in a break. There was therefore no public policy justification for excluding the evidence.

The EAT made it clear that the fact that the recordings were made covertly is not, of itself, a ground for ruling them inadmissible in evidence and tribunals have a very wide discretion when deciding whether to admit evidence. So where does this leave us? Based on case law to date it seems that:

• Secret recordings of hearings where all parties are present will be admissible in evidence;
• Secret recordings of the private deliberations of the disciplinary/grievance panel will not be admissible on public policy grounds;
• However, where the recording of those private deliberations produces the only available evidence of possible discrimination, then the recording will be admissible.

What can employers do to protect themselves? Some employers state in their disciplinary and grievance policies that recordings are not be made. They should reinforce this at the start of the hearing and specifically ask the employee to confirm that they are not recording the proceedings. Whilst this may act as a deterrent, in reality an employee who ignores this and does make a secret recording will only be stopped from relying on it in the limited circumstances outlined above. 

Perhaps the safest course is to adjourn to another room for any private deliberations or other breaks in proceedings and to be more guarded when it comes to discussions during breaks. Appropriate training should also be given to those hearing disciplinary and grievance issues so that they handle matters fairly throughout.