Case update (3): Loose talk – you’ve been taped!

Summary: Is an employee’s covert recording of his or her employer’s private discussions during a grievance and disciplinary hearing admissible in evidence at Tribunal?

Yes, says the EAT in Punjab National Bank v Gosain available here.

Facts: The employee secretly recorded panel members’ discussions at the grievance and disciplinary hearings she had attended. Some of the recordings were of private comments made about her by panel members during breaks in the hearings, when she was out of the room. When she disclosed the covert recordings to the bank, it objected to the admissibility of the private contents of the recordings, which ran for approximately 15 minutes at the grievance hearing and 30 seconds at the disciplinary hearing. The private panel comments alleged included the bank’s managing director giving an instruction to dismiss the employee, and the manager hearing the grievance saying that he was deliberately skipping the key issues raised by the employee in her grievance letter, namely, that she was not allowed a proper lunch break and issues concerning her pregnancy. The employee wanted to use the tapes as evidence in her Tribunal claim for sexual harassment, sex discrimination and constructive unfair dismissal.

The employer objected to the admissibility of their private deliberations at the hearings, based on the public policy argument that disciplinary panels should not be discouraged from having full and frank exchanges of views in an attempt to reach the right decision.

At a preliminary hearing the Tribunal ruled that the recordings were admissible and the EAT upheld this decision. The general rule is that evidence should be admissible if it is relevant and although public policy considerations can come into play, in this particular case the EAT agreed with the Tribunal that the private comments of the panel “were not part of the deliberations in relation to the matters under consideration” at the grievance and disciplinary hearings.  The situation was therefore different from that in an earlier case, Amwell View School Governors v Dogherty, in which an employee was not allowed to produce recordings of panel deliberations in evidence.

Implications: There is a growing trend of employees recording internal hearings and meetings, presumably to protect themselves, or raise a complaint if they are dismissed, or subjected to other sanctions. Just an iPod or smartphone will do to enable employees to covertly record of lengthy discussions without detection.

This case shows the difficulties faced by employers where recordings are made and employers may well not be able to prevent evidence even of private discussions being used in a Tribunal. Given the ease of recording and perils faced when it happens, it may be prudent for employers to make clear in their policies that covert recording in the workplace is not acceptable.  A ban on covert recordings in internal policies should at least make it easier to address the breach as a conduct issue.

Ultimately, however, the most important message for employers is to only have conversations that they don’t mind recorded – or at least to hold confidential discussions in a place which minimises the risk of recording.