In Punjab National Bank v Gosain, Gosain (G) lodged ET claims alleging sexual harassment, sex discrimination and constructive dismissal. Prior to her resignation G attended a grievance hearing and a disciplinary hearing. She recorded both “public” and “private” conversations connected with those hearings. The recordings were disclosed to the employer 7 months later. They objected to the admissibility into evidence of the private contents of those recordings.

At a preliminary hearing an ET ruled that the recordings were admissible at the full merits hearing. In doing so the ET referred to Amwell View School Governors v Dogherty [2007] ICR 125 in which the EAT overturned an ET decision to admit covert recordings of private deliberations of a panel conducting a disciplinary hearing. In Amwell, the reason for excluding the recordings was that the content constituted the type of ‘private’ deliberations which the parties would understand would take place in relation to the specific matters under consideration about the employee at the grievance and disciplinary hearings.

The ET concluded that the circumstances of this case could be distinguished from those in Amwell, because the comments which G alleged were made during the private part of the hearings [see paragraph 7 of the EAT judgment] were not part of the deliberations in relation to the matters under consideration by the grievance and disciplinary panels. The ET added that if this was wrong, there was no public policy reasons why these particular comments, even though made in private, should be protected and should provide an exception to the general rule that relevant evidence is admissible.

The EAT upheld the ET’s decision, ruling that a tribunal has a wide discretion when making case management orders. The ET did not make an error in the distinction it drew with the circumstances in Amwell. The fact that the recordings were made covertly is not, of itself, a ground for ruling them inadmissible. The ET carried out the balancing exercise required, 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.

The status of covert recordings has always been a thorny issue for employers, even more so in this day-and-age of smart phones with recording facilities. This case sets out the principles which apply to admissibility of secret recordings, including the balancing exercise which needs to take place when weighing up the relevance of evidence against public policy interest in maintaining privacy.

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