What happened?

In Punjab National Bank (International) Ltd and others v Gosain, the EAT decided that covert recordings made by an employee of public and private discussions at her disciplinary and grievance hearings could be admissible evidence.

What does this mean?

Covert recordings may be admissible evidence even where they record private conversations of the disciplinary or grievance panel. It was previously decided by the EAT in Amwell School Governors v Dogherty that the public policy interest in preserving the confidentiality of the private deliberations of disciplinary and/or grievance panels could outweigh the general rule that relevant evidence should be admitted.

However, in Punjab, the alleged comments included instructions to dismiss the employee, acknowledgments that the employee's manager was deliberately skipping issues raised in the employee's grievance letter and other vulgar remarks of a potentially discriminatory or harassing nature. These alleged comments did not to relate the specific matters at issue in the disciplinary and grievance hearings and, in light of their content, there were no public policy reasons why the alleged comments should be protected. Accordingly, the employee was entitled to rely on the recordings at the full hearing.

What should we do?

Employers should ensure that their disciplinary and grievance procedures contain an express prohibition against employees recording hearings without consent. Employers should also be aware that this may not prevent employees from recording hearings on their mobile phones or other electrical equipment, so care should therefore be taken to ensure that all comments made in public hearings and private deliberations are appropriate.