Mark Pentecost: Employers need to be wary at tribunals

Mark Pentecost
Mark Pentecost

An employee brings a grievance to the attention of her employers relating to sexual harassment and sex discrimination. There is a disciplinary hearing held sometime later.

The employee makes secret recordings of the hearings and the private meetings of the panel when she is not in the room. Would she be allowed to use the recordings as evidence in an employment tribunal?

In a recent case, the surprising answer was ‘yes’. A recent claim was brought by Ms Gosain who resigned from her job at Punjab National Bank in January 2013, having joined in May 2011. Prior to her resignation, Ms Gosain attended both a grievance hearing and a disciplinary hearing with the bank. She secretly recorded the public discussions at the hearings and the private conversations of the panels. She then brought claims of sexual harassment, sex discrimination and constructive unfair dismissal.

When she disclosed the covert recordings to the bank, it naturally objected to the private contents of the recordings being allowed.

The private panel comments were recorded during a break in the grievance hearing, and in these recordings the bank’s managing director gave an instruction to dismiss Ms Gosain, and the manager who was hearing the grievance was heard to say that he was deliberately skipping the key issues raised by Ms Gosain in her grievance letter, the issues being that she was not allowed a proper lunch break and other issues concerning her pregnancy.

An employment judge held that all of the recordings were admissible as evidence at the final hearing. The bank appealed, but the top employment appeals tribunal dismissed the appeal because the private comments of the panel the employee alleged she had recorded “were not part of the deliberations in relation to the matters under consideration” at the grievance and disciplinary hearings.

This opens a whole can of worms for employers in this situation. It is wise for an employer to make sure that their disciplinary and grievance policies contain an express prohibition against the recording of hearings without consent. But even this would not be enough to help the employer in the same situation as Punjab National Bank.

Whether or not conversations that are secretly recorded (whether public or private) are allowed as evidence at a tribunal hearing will always be at the discretion of the tribunal.

It is becoming more and more important for employers to keep in mind that many employees these days will be able to easily record conversations on a mobile phone, even when they are not in the room. For this reason employers should be very careful to ensure that all discussions at meetings with employees (including the private deliberations afterwards) do not contain any inappropriate comments.

Extra care should be taken that all management and supervisory staff are briefed accordingly. This problem will become more common as technology improves. No-one wants their private unguarded comments heard in a public tribunal.