In the recent case of Punjab National Bank (International) Limited -v- Gosain the Employment Appeal Tribunal has recently had to consider a situation where a lady bringing claims of sexual harassment, sex discrimination and unfair constructive dismissal had recorded both ‘public’ and ‘private’ conversations connected with a grievance hearing and a disciplinary hearing. The employee concerned claimed that the recordings evidenced the Managing Director of her employer giving an instruction to dismiss her as well as the Manager dealing with the grievance talking about deliberately skipping over the key issues raised in her grievance letter. In relation to the disciplinary hearing, she argued that a sexually explicit comment could be heard on the recording. As you might imagine, her employer, knowing it was going to be severely embarrassed by such recordings, sought to object to them being admissible evidence in the Employment Tribunal.
At the Employment Tribunal the Judge ruled that the recordings were admissible. You may recall the 2007 case of Amwell View School Governors -v- Dogherty where the Employment Appeal Tribunal had found that a Claimant could not rely on secretly obtained recordings of private deliberations of the school governors who conducted disciplinary hearings. The Judge distinguished that the comments in Punjab -v- Gosain were not recorded as part of the legitimate considerations of matters before a grievance or disciplinary panel. In the former case the importance of the parties in an internal hearing respecting the ground rules, including privacy of private deliberations, was emphasised. In this more recent case, the alleged comments were not made during the type of private deliberations which the parties would have understood would have taken place in private. In any event, given the nature of what was alleged to have been said, the Judge could see no reason why these particular comments, even though made in private, should be protected.
The employer continued to challenge this decision to the Employment Appeal Tribunal who disagreed with the employer. They emphasised that, just because a recording had been made covertly, that did not make it inadmissible.
For many years now I have been advising managers, when undertaking training, that they should assume (pretty much at all times) that they are being recorded and act accordingly. Given employees’ access to mobile recording devices (their phones), in any conversations they have they should assume that the employee has a capability of recording them and ensure that they don’t say anything that they wouldn’t regret having played back to them in an Employment Tribunal. If they work on this basis, then they will have protected themselves – at the point that the recording has been made and is being used in evidence, the horse has bolted from the stable and they are unlikely to avoid that recording being aired. It is very common now for recordings to become part of the Tribunal proceedings. I have certainly had to settle a number of cases on behalf of the employer because of the content of recordings.