In recent years, the easy accessibility of recording devices has created a minefield for employers wishing to conduct grievance or disciplinary hearings with employees.
This has been caused in part by the wide discretion given to Employment Judges regarding the admissibility of evidence. The consequence of this is a body of case law allowing the introduction of evidence obtained by covert methods.
An early example is the case of Chairman and Governors of Amwell View School v Dogherty where it was held that while covert recordings from a disciplinary hearing were admissible, the recordings of the private deliberations of the disciplinary panel were not.
The distinction between the two seems to have been made on public policy grounds – specifically, to ensure their decision would not have a detrimental impact on the free deliberation of the facts by a panel.
That having been said, the Tribunal made clear that had the recordings contained evidence of discrimination, its decision could have been different.
Caveats on using covert recordings
Since Dogherty, Employment Judges have sought to place caveats on the introduction of covert recordings in evidence. The Employment Appeal Tribunal (EAT) in Vaughan v London Borough of Lewisham and others outlined that whilst the introduction of covert evidence is distasteful, this does not automatically lead to its exclusion.
Those wishing to use covert evidence should make an application to the Tribunal to do so, and explain its relevance in the proceedings.
More recently in the case of Punjab National Bank v Gosain, the Employment Tribunal departed from the decision made in Dogherty. Ms Gosain had made covert recordings of both public discussions at the hearing as well as the private deliberations of the disciplinary panel.
During the private conversations, a Manager of the Bank could be heard saying that he was intentionally avoiding issues raised by Ms Gosain in her grievance letter. On Appeal, the EAT agreed that the private deliberations were admissible as the comments made by the Manager did not form part of the deliberations regarding the case at hand.
The upshot of the decision in Gosain is that employers must take care when conducting grievance or disciplinary hearings with employees. The ease with which evidence can be gathered by employees and the wide discretion afforded to Employment Judges regarding the admissibility of evidence makes it all the more important for employers to protect themselves.
With the introduction of a few simple procedural steps, it’s possible for employers to safeguard their position whilst ensuring hearings are held in a fair and honest manner.
How employers can prevent issues arising from covert recordings
- Ensure that all discussions at hearings, whether public or private, are kept solely to the matter at hand. Take minutes of hearings and make sure to document full reasoning for the decisions reached.
- Introduce rules expressly prohibiting the recording of proceedings and asking the employee at the outset whether they are recording the hearing.
- Conduct private deliberations in a different room to the hearing.
To learn more about how you to conduct employment hearings in a safe, cost-effective way, talk to expert employment solicitors at Howells today. Call 0808 178 2773 or request a call back today.
