Following Punjab National Bank (International) Ltd and others v Gosain (UKEAT/0003/14), recordings of discussions, whether private or public, of the decision-making panel at grievance and disciplinary hearings, can be admitted as evidence at a final hearing – even where such recordings have been taken secretly by the employee.
Whilst a Tribunal is afforded wide discretion in determining the admissibility of any evidence, Chairman and Governors of Amwell View School v Dogherty UKEAT/0243/06) provided guidance that recordings of a disciplinary hearing could be used in evidence, but the private deliberations of the relevant decision-making panel could not.
In Punjab National Bank v Gosain however, the EAT held that the comments made by the panel in private were not ‘deliberations’ on the matters being considered. Amwell View School v Dogherty could therefore be distinguished.
Whilst deliberations of a panel that relate to the issues being considered are still likely to be inadmissible, the question of whether or not secretly recorded discussions are admissible in evidence is ultimately at the discretion of the tribunal. Employers must therefore be mindful of this decision and its consequences in relation to their disciplinary practices. Moreover, steps should be taken to minimise the risk of covert recordings – which has become increasingly simple as technology advances.
It makes sense for disciplinary and grievance policies to expressly prohibit the recording of disciplinary meetings. However, whilst doing so is advisable, and may deter an employee from making secret recordings, an express prohibition against the recording of hearings will not actually prevent recordings being admissible.
In terms of more practical steps, employers and their relevant decision-making panels may wish to make use of a separate room in considering any outcome.
Regardless of which steps are taken, employers must act appropriately, be aware of their surroundings and reduce the risk of their discussions being recorded by the employee.
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