Beware - covert recordings can be used in Tribunal

A recent case in the Employment Tribunal has highlighted the issue of employees making recordings during disciplinary and grievance hearings.

By Karen Credie, director, KMC HR Consulting.

The case (Punjab National Bank v Gosain) involved an employee who made allegations of sexual harassment and sex discrimination in her claim for constructive unfair dismissal. Before resigning from the company the employee, Ms Gosain, attended grievance and disciplinary hearings during which she made secret recordings; including recording the conversations between her managers during breaks.

Although previous case law holds that secret recording cannot be used as evidence in employees’ claims, in this case, the judge ruled that they could due to their content. The recordings obtained by Gosain included discussions between the panel that were not directly relevant to the matters being decided at the grievance and disciplinary hearings. As such, the judge deemed that they could be admissible as evidence.

This case is of particular relevance in this day and age with the widespread use of smartphones and tablet devices, the vast majority of which have recording capabilities. It also highlights the need for care when holding discussions about employees, even if you believe the discussions to be ‘in private’.

I would always advise that employees and their representatives are requested to remove their belongings from the room during breaks in grievance and disciplinary hearings. This should include handbags, coats and jackets, all of which could have a phone/recording device hidden in a pocket. Employees should also be asked to turn off mobile phones for the course of the hearing.

Another route employers could follow is to make it clear to all in attendance at the hearing that minutes are being taken and will be made available to all parties. This is advised by ACAS and is good practice in any event, but could also deter employees from attempting to make recordings.

Employers could go the opposite way altogether and make official recordings of the public elements of grievance and disciplinary hearings themselves. This would need to be agreed by all parties ahead of the meeting (or else worked into the company’s grievance and disciplinary policies) and again, copies would need to be made available to employees. This route would maintain transparency and again discourage any attempts by employees to make their own recordings. Should you need any HR advice in relation to this, please contact us. KMC HR offer a service to employers where we can attend disciplinary or grievance hearings. We also offer training to internal managers on how to conduct disciplinary and grievance procedures.