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Secret recordings admissible

Punjab National Bank v Gosain

You may think there’s something underhand about an employee covertly recording their disciplinary or grievance hearing. But don’t bank on an employment tribunal sharing your outrage and excluding the evidence.

If it’s relevant to the employee’s case, then the tribunal is probably going to want to hear it.

Ms Gosain worked for Punjab National Bank. Immediately after her grievance and disciplinary hearing, she secretly recorded her employer’s private deliberations. She alleged that wholly inappropriate comments were made while she was out of the room. These included an instruction to dismiss her, and discussions about the deliberate skipping of issues in Ms Gosain’s grievance letter.

The Employment Appeal Tribunal (EAT) said that there is a balance to be struck between allowing relevant evidence to be heard and public policy interest in preserving the confidentiality of private conversations. Normally the evidence should be admissible, the EAT held, especially if the detail is outside the scope of the employer’s proper deliberations on the relevant matters. In this case the comments fell outside the area of legitimate consideration (as it was improper for the chair to be given instructions, and for a conscious decision to be taken to ignore aspects of the grievance) and so the recordings could be used in evidence.

Will this decision change the way you conduct yourself and your internal hearings? For some employers it will come as a stern reminder of the danger of careless conversations. So the biggest message to take from this case is: say only what you would be happy for a tribunal to hear you say (or perhaps go to a different room for your discussions!).