Recording discipline related conversations – are they admissible in Employment Tribunals?

In the age of smartphones it is relatively easy for an employee to make covert recordings of conversations during meetings. Employees may feel that they want to safeguard their position in preparation for a Tribunal hearing by recording conversations. 

In Vaughn v London Borough of Lewisham & ors the EAT stated that the practice is ‘very distasteful’.  The court, however, considers relevance of the material and the public policy interest in maintaining the privacy of deliberations in internal grievances and disciplinary processes into account when deciding on admissibility.

A Claimant will have to show that the material is relevant to the dispute and should apply for admission of the material at an early stage of the proceedings.

In Chairman & Governors of Amwell View School v Dogherty the EAT was not happy to include the covert recordings because the recordings included parts of the meeting in which the teacher was absent when she was asked to leave the room so the panel could deliberate and make a decision.

The EAT agreed that the recordings that took place in the presence of the teacher could be used as evidence. The recordings during the private deliberations were not allowed as evidence as the disciplinary panel had an expectation of privacy. The EAT noted that a failure to maintain respect of privacy in this context would have the consequences of inhibiting open discussion between those engaged in adjudicating and would be a matter of public policy and give rise to satellite litigation.

In a recent case of Punjab National Bank (International) Ltd & ors v Gosain the EAT ruled that covert recordings in private deliberations could be used as evidence.  In Punjab the Claimant was pursuing claims of sexual harassment, sex discrimination and constructive unfair dismissal.  The covert recordings during the private deliberations according to the EAT included a number of relevant statements.  In Punjab the remarks made during the private sections of the hearing did not relate to the matters under consideration by the panel.  The comments made by the manager about the Claimant during the private deliberations were found to fall outside of a public policy interest of maintaining confidentiality.

Claimants should not assume that covert recordings will be admissible.  If there is a strong argument, however, regarding their relevance and the remarks are outside the matters that would form part of private deliberations then, they may be found to be admissible.

Felicia Epstein, Employment Solicitor