14 March 2014 #Employment
It’s easier than ever before for employees secretly to record disciplinary, appeal and grievance meetings, using their mobile phones. But are these secret recordings admissible as evidence before an employment tribunal?
According to the EAT in Chairman and Governors of Amwell View School v Dogherty, that depends on whether the recording is of the ‘open’ part of the hearing (i.e. the part during which the employee or his representative is present) or of the decision maker’s private deliberations.
If the recording is of the open part of the hearing, it is admissible. If it is of the private deliberations, the public policy requirement that claims be tried on all available relevant evidence must be balanced against the strong public interest in the parties to a meeting complying with its ‘ground rules’, including that adjudicators’ deliberations should be, and should remain, private. In Amwell (an unfair dismissal claim), the balancing exercise came down in favour of excluding the recording of the private deliberations.
However, that doesn’t mean that all private comments made by panel members during breaks in internal meetings are protected. In the recent case of Punjab National Bank (International) Ltd and others v Gosain, the employee was claiming constructive unfair dismissal, sex harassment and sex discrimination. She had secretly recorded the private discussions of the disciplinary and grievance panels, including the following comments:
The EAT in Punjab held that these ‘private’ comments were admissible because they fell outside the areas on which the disciplinary and grievance panels were meant to be deliberating and so were not protected by the principle set out in Amwell.
In light of these cases, it would be prudent for employers to ensure not only that they clearly communicate to employees that they are prohibited from recording meetings but also that they ensure that the decision maker’s private discussions are appropriate.