Set the scene: You, the employer, are in the middle of a disciplinary or grievance hearing. You adjourn the hearing so that you can deliberate and discuss the matter in the employee’s absence. You then reconvene the hearing so that you can inform the employee of your decision. You later find out that the employee has not only secretly recorded the hearing itself but has also secretly recorded you during the adjournment, when you thought no one was listening. Question: Can the employee later rely on what you said as evidence at an employment tribunal hearing?
This was the question that the EAT had to decide in the recent case of Punjab National Bank (International) Limited and Others v Gosain.
The previous case law
There have been numerous cases that have had to deal with the question of whether or not an employee can rely on covert recordings. Judges have, in the past, decided that although generally covert recordings are admissible, the private discussions of the employer when reaching their decision would not be admissible. However, following the EAT’s decision in Gosain employers cannot make any assumptions about what will and will not be admissible if the matter eventually ended up in an Employment Tribunal.
Facts of the Gosain case
In January 2013 Ms Gosain resigned. Before her resignation, she attended a grievance hearing and a disciplinary hearing. During the hearings, which she secretly recorded without her employer’s knowledge, the employer adjourned the hearing, and during this adjournment inappropriate comments were made. During the adjournment of the disciplinary hearing, the bank’s managing director also instructed the dismissal of Ms Gosain.
Ms Gosain, in her claim for constructive dismissal, sex discrimination and sexual harassment sought to rely on these covert recordings. Unsurprisingly, the bank objected.
At a preliminary hearing, the Employment Tribunal took the view that Ms Gosain was entitled to rely on these recordings as evidence in her claim. The bank appealed this decision.
The Employment Appeal Tribunal held that the Employment Tribunal had made the correct decision, and that Ms Gosain was entitled to rely on this evidence. The rationale behind this decision was due to the fact that the comments made went further than simply deliberating the decision. It would then be up to the Employment Tribunal at the final hearing to decide what weight to attach to this evidence when the claim itself was heard.
What does this mean for employers?
As an employer, you should make sure that all your employees are well aware that they are not permitted to make recordings during any meeting or hearing. This should not only be set out in writing in the relevant policies and procedures but should also be made clear to employees at the start of a hearing. The employee should be asked to put their phone on the table and it should be confirmed that it is turned off.
However, even with these safeguards in place the risk remains that your discussions may be covertly recorded (for example, an employee may leave another phone or recording device in a jacket pocket or bag that is left in the hearing). In an ideal world this means that you should keep such discussions professional at all times. However, we all know that often frank discussions will be had in adjournments, or during deliberations, at the conclusion of hearings, and, in many instances, you would not want the employee to hear what has been said. If that is the case, then the only way you can ensure that all your conversations remain confidential is to leave the room where the hearing is being held and have these discussions in another private room.
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