Can covert recordings be used as evidence?

Employers are becoming increasingly concerned at the risk of employees using mobile phones with voice recording functions to record disciplinary, grievance and redundancy meetings. It is now understood that these recordings made by employees are coming under scrutiny in the employment tribunal. In Punjab National Bank (International) Ltd v Gosain, Ms Gosain recorded both “public” and “private” conversations connected with her grievance and disciplinary hearings. The recordings confirmed that key issues which Ms Gosain raised were deliberately being ignored by her employer with the Bank’s Managing Director giving instructions to deliberately skip issues raised in Ms Gosain’s grievance letter. As well as this, the manager conducting the disciplinary meeting made degrading sexual comments about Ms Gosain during a break.

Ms Gosain brought claims against her employer alleging sexual harassment, sex discrimination and constructive unfair dismissal and the tribunal held that the recording was admissible as evidence to the issues of the case. The bank appealed this decision to the Employment Appeal Tribunal (EAT), but the appeal was dismissed.

The EAT distinguished the current case from the case of Amwell View School Governors v Doghety in which the EAT overturned an ET decision to admit covert recordings of private deliberations by a panel conducting a disciplinary hearing. The Judge concluded that the difference between the current case and Dogherty case is that comments which are alleged to have been recorded, if said, fall well outside the legitimate consideration of the matter which fell to be considered by the relevance and disciplinary panels respectively. She also noted that given the nature of what is alleged to have been said, she could see no public policy reason why the particular comments, even though made in private, should be protected and should provide an exception to the general rule that relevant evidence is admissible.

Therefore employers must be careful when holding any disciplinary or grievance with employees in light of the above. Simply because a conversation is “private” or has been recorded without someone’s knowledge does not automatically render it inadmissible in evidence and the Tribunal can exercise discretion in this regard. It seems that the Tribunal will normally only consider how relevant the evidence is to the issue being determined as opposed to the manner in which the evidence is gathered. Managers and HR advisers should always ensure to maintain discretion and a professional demeanour at all times including following good practice and a fair procedure especially when conducting grievance and disciplinary hearings.

This article has been produced for general information purposes and further advice should be sought from a professional advisor. Please contact our Employment Team at Cleaver Fulton Rankin for further advice or information.

Michael Black, Employment and Immigration Director, Employment Law Team, Cleaver Fulton Rankin, Solicitors.

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