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11th March 2014

Covert Recordings

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We are often asked whether an employee can record their disciplinary or grievance hearing.

They have no statutory right to do so, but nor does the legislation prevent it. Employers therefore need to be alive to the perils of making statements during such hearings that could compromise the process.

Covert recording might seem distasteful but this does not prevent relevant content potentially being admissible as evidence at Tribunal. The question is whether the general rule of admissibility of relevant evidence or the public policy interest in preserving the confidentiality of private deliberations sways the balance - not the way in which the recording was obtained.

Case-law on the subject recognises the distinction between the open and private sections of disciplinary and grievance hearings (there being an expectation that the former would be recorded in some way in any event). In the case of Chairman & Governors of Amwell View School v Dogherty [2006] there was no objection to the disciplinary panel’s request that all parties withdraw from the room. The Employment Appeal Tribunal (EAT) felt that failure to respect the privacy of the panel’s discussions in that part of the process would inhibit open deliberations and, further, that potential satellite litigation could ensue if those discussions were somehow ‘leaked’ or recorded.

Unsurprisingly however this case was fact-specific and the point was made that the decision might have been different if the recording suggested that unlawful discrimination had taken place.

In this year’s EAT case of Punjab National Bank (International) Ltd & ors v Gosain, the Claimant covertly recorded the open and private sections of her grievance and disciplinary hearings, hoping to be able to rely on them in her subsequent claims for sexual harassment, sex discrimination and constructive unfair dismissal.

During the private section of the grievance hearing the chairperson said that he was deliberately skipping the key issues about which the Claimant had grieved (which concerned her pregnancy and not being allowed a proper lunch break). During the private section of the disciplinary hearing the chairperson made derogatory and sexually offensive comments about the Claimant’s relationship with another employee. The recordings were held to be admissible evidence.

The two cases may be distinguished by the fact that in Punjab some of the remarks made by the chairs in the private section of the hearings did not relate to the matters they were supposed to be considering – instead they were missing out the key issues in the grievance hearing and making such derogatory remarks in the disciplinary hearing that there could be no public policy interest in keeping them confidential.

Putting policies and procedures into place which expressly prohibit the covert recording of disciplinary/grievance hearings and set out the consequences of any breach up to and including dismissal may act as a deterrent. Clearly however there remains no substitute for ensuring that anything said in such contexts does not go beyond what would normally be expected, which includes training managers who conduct disciplinary and grievance hearings to act appropriately throughout all stages of the process.