Employee's covert recording of private discussions at disciplinary/grievance hearings were admissible

In Punjab National Bank v Gosain, an employee, Ms Gosain had made covert recordings of her grievance and disciplinary hearings. The recordings were of both the hearings themselves and of private discussions by her employer (“the Bank”) during breaks in the hearings.

These included comments by a manager that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter, which included issues relating to her pregnancy and also that she was not allowed a proper lunch break.

Ms Gosain resigned and brought claims for sex discrimination, harassment and constructive unfair dismissal. The Bank objected to the admissibility of the recordings of the private discussions as evidence.

In an earlier case, Amwell View School Governers v Dogherty [2007], the EAT held that private discussions were not admissible on the grounds of public policy to ensure that the employer could have a full and frank discussion around key issues, in the interests of reaching the “right” decision. However, the EAT distinguished the present case from Dogherty and held that the employer’s comments were “not part of the deliberations in relation to the matters under consideration”.

The covert recordings were potentially relevant and supportive of Ms Gosain’s case for discrimination and constructive unfair dismissal. The Judge could see no public policy reasons why the comments (even though made in private) should be protected.

The fact that recordings are made covertly is not a ground for ruling them inadmissible. There is clearly a careful balance to be struck between the admissibility of relevant evidence and protecting the public interest in confidential deliberations at hearings. It is clear from this case that an employer cannot have an expectation of protection where he has made discriminatory comments, or adverse comments which fall outside of normal employer deliberations on the issues in the disciplinary or grievance case.

Employers would be wise to have express wording in their disciplinary and grievance policies that  states covert recordings are strictly prohibited. However, as this case demonstrates, even where there is express prohibition of covert recordings, such evidence may still be admissible in later ET proceedings.

Therefore, employers must take care when making comments during private deliberations, that such comments are appropriate and relevant to the matters to be decided in the case, where there is suspicion of it being recorded.