In the case of Punjab National Bank v Gosain  the Employment Appeal Tribunal (EAT) had to consider the question of whether secret recordings of her employer’s private deliberations over the outcomes of disciplinary and grievance hearings were admissible as evidence in subsequent Employment Tribunal proceedings.
During her employment by Punjab National Bank, Ms Gosain attended both a disciplinary and a grievance hearing. She secretly recorded both the public discussions at the hearings and the private deliberations of the panels. Ms Gosain subsequently resigned and brought claims of sex discrimination and constructive unfair dismissal. As part of those proceedings she disclosed the secret recordings to the bank during the disclosure process. The bank objected to the admissibility of the private contents of the recordings. The recordings ran for approximately 15 minutes during the grievance hearing and 30 seconds during the disciplinary hearing. The private comments of the panel which Ms Gosain alleged had been recorded during a break in the grievance hearing included the bank’s managing director giving an instruction to dismiss Ms Gosain, and the manager hearing the grievance saying that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter, namely, that she was not allowed a proper lunch break and other issues relating to her pregnancy.
At a preliminary hearing of the Employment Tribunal, an employment judge held that all of the recordings were admissible as evidence at the final hearing. The bank appealed.
The EAT stated the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance and disciplinary hearings. On the facts of this case, it noted that the employment judge had considered that the private comments of the panel which the employee alleged she had recorded “were not part of the deliberations in relation to the matters under consideration” at the grievance and disciplinary hearings. As such, they held that the recordings were admissible as evidence at the final hearing and it would be for the Employment Tribunal which would hear the case to assess the cogency of the recordings and their impact on the issues which it had to determine.
This is a slightly worrying decision in that it might give employees the impression that they have the “green light” to make secret recordings of any such hearings. If employers are in any doubt, they could consider asking the employee if they are intending to record the meeting. A dishonest denial would at least go some way to damaging the employee’s integrity and credibility.
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