How should employers avoid their private deliberations being used in tribunals?
In Punjab National Bank v Gosain, the EAT had to consider whether the secret recordings an employee made of adjournment discussions at disciplinary and grievance hearings could be admitted as tribunal evidence.
Facts
Gosain lodged claims alleging sexual harassment, sex discrimination and constructive dismissal. Prior to her resignation, she attended a grievance hearing and a disciplinary hearing. She recorded conversations connected with those hearings both ‘public’ (remarks made in the meetings) and ‘private’ (remarks allegedly exchanged between managers during the breaks). The employer objected to the recordings of the so-called ‘private’ conversations being used as evidence in a tribunal.
Tribunal
At a preliminary hearing the tribunal judge referred to the case of Amwell View School Governors v Dogherty. In this case the EAT held that secret recordings of the ‘private’ deliberations of a panel conducting a disciplinary hearing could not be used as evidence because the parties involved would understand they would take place over the specific matters under consideration in the hearing and would remain private.
The tribunal, however, decided that the circumstances of the current case were different, and the recordings were admissible as evidence. The comments which Gosain alleged had been made during the private deliberations were about issues not directly relevant to the matters being decided by the disciplinary and grievance panels. The tribunal said there was no reason why these particular comments, even though made in private, should be protected or treated as an exception to the general rule that relevant evidence is admissible. The employer appealed.
EAT
The EAT upheld the tribunal’s decision, ruling that a tribunal has a wide range of choices when making case management orders and had not made an error in distinguishing the circumstances in the Amwell case. The fact that the recordings were made covertly was not, by itself, a reason for ruling them inadmissible. The tribunal had carried out correctly the balancing exercise required between the general rule that relevant evidence is admissible and the need to preserve the confidentiality of private deliberations during internal grievance and disciplinary proceedings.
Comment
The status of covert recordings has always been a thorny issue for employers, and has become even more so in an age of smart phones with recording facilities. This case sets out the principles which apply to admissibility of secret recordings, but what can employers do to try to ensure that employees do not make them?
Employers could make it clear in both disciplinary and grievance procedures that employees should not make recordings of any part of a hearing without the consent of those present. It would also be wise to ensure that the introduction to any proceedings contains a request that all those present should ensure that mobile phones, or any other portable devices, are switched off, supplemented by a request that employees and their representatives should remove all their belongings from the hearing room during an adjournment.
Of course, employers may decide to take a more proactive stance, given that the contents of meetings are often disputed, and decide to record all the public elements of the proceedings and provide typed transcripts to all parties, while retaining the recordings for future reference. They could gain the implied consent of employees to this recording by incorporating it into their disciplinary and grievance policies.
Employers should also make sure they comply with the Acas guide on discipline and grievances at work, which advises that copies of meeting records should be given to the employee, including copies of any formal minutes taken. While the guide does not have statutory force, it represents best practice and if employees know that records will be made available, they may be less inclined to become involved in covert activities.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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