Warning to Employers
Employers expect to be able to deliberate issues surrounding grievance and disciplinary issues in private. However, in a recent Employment Tribunal case (Punjab National Bank (International) Ltd v Gosain) the Judge ruled discussions and deliberations secretly recorded by an employee were admissible evidence within a subsequent discrimination claim brought by the employee.
In the above case the employee had raised a grievance that she was not being permitted a proper lunch break and other issues had arisen in relation to her pregnancy. The employee later resigned and brought claims for sexual harassment, sex discrimination and constructive unfair dismissal.
The employee had secretly recorded her grievance and disciplinary hearing and continued to record her employer’s deliberations once she had left the room. The employee relied on these recordings as evidence supporting her employment claims.
In this case the secret recordings were considered admissible in large part because of the serious discriminatory nature of the comments made and also because a manager clearly stated he was not following correct procedure and was not considering the grievance appropriately. Employers should be careful not to say anything which does not constitute a genuine consideration of the relevant issues.
Whilst the starting point is that secretly obtained evidence should not be admissible, it seems that where the nature of the content is serious enough or it is in the interests of fairness to do so, a Judge may be inclined to admit that evidence.
Therefore, if employers do write or say anything which does not amount to a fair consideration of a grievance or disciplinary matter, or make any inappropriate comments, they should be aware this may well become admissible in Tribunal hearings should an employee be secretly recording such conversations.
If you would like advice on employment issues please contact us.