It will be interesting to find out whether we will see an increase in the number of attempts by employees to use covert recordings of the deliberations by a disciplinary or investigatory panel following the decision of the Employment Appeal Tribunal in the recent case of Punjab National Bank (International) Limited –v- Gosain (UKEAT/0003/14/SM).
In that case, the claimant had attended a grievance hearing on 7 November 2012 and a disciplinary hearing on 15-16 January 2013. She had managed to be able to record both the ‘public’ and ‘private’ conversations connected with both hearings. Eventually, the recordings were disclosed to the employers in July 2013 and they objected to the admissibility of the private contents of those recordings, which were said to run for approximately 15 minutes at the grievance stage and some 30 seconds at the disciplinary stage.
At a Case Management hearing the judge had decided to allow the evidence to be admitted. The employer appealed.
At the appeal, the employer acknowledged that the recordings were potentially relevant and probative of the claimant’s case and therefore, on the face of it, admissible. However, it argued that the public policy interest in preserving the privacy of internal deliberation should have outweighed the general rule that ‘relevant evidence’ should be admitted at trial.
The EAT repeated its reluctance to interfere with case management orders made by an employment judge and went on to state that the fact that the recordings were made covertly was not, of itself, a ground for ruling them inadmissible. It also said that, so long as a judge demonstrated that s/he had carried out the necessary balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context, it was not appropriate for the Appeal Court to intervene in the making of any decision on whether or not the evidence should be admitted.
Summary
It is difficult to see that this case will do anything but encourage an increase in the attempts by employees to collect relevant evidence in support of a claim that they have been treated badly by using covert recordings of the employer’s conduct and discussions, particularly at internal grievance and disciplinary hearings. From an employer’s perspective, it is important that it is aware of this increased risk and takes whatever steps it might think are appropriate in order to avoid the consequences.