Labour & European Law Review Weekly Issue 366 13 April 2014
Although covert tape recordings have been held to be inadmissible at tribunals, the Employment Appeal Tribunal (EAT) held in Punjab National Bank (International) Ltd and ors v Gosain that there is no rule to that effect and tribunals must carry out their own balancing exercise when trying to decide whether they are admissible.
Ms Gosain worked for the bank from May 2011 until she resigned at the end of January 2013. In April that year, she lodged a tribunal claim for sexual harassment, sex discrimination and constructive unfair dismissal.
Prior to her resignation Ms Gosain attended a grievance hearing on 7 November 2012 and a disciplinary hearing on 15 to 16 January 2013. She recorded both “public” and “private” conversations connected with those hearings and disclosed the tapes to her former employer in July 2013. They argued that the “private” content of the recordings, which ran for approximately 15 minutes at the grievance stage and 30 seconds at the disciplinary stage, were inadmissible.
At a preliminary hearing, the employment judge distinguished the case of Amwell View School Governors v Dogherty (in which the EAT refused to admit covert recordings of private deliberations of a disciplinary panel) from this case and ruled that the recordings that Ms Gosain had made were admissible.
The main difference between this case and Dogherty, according to the tribunal judge, was that the comments fell “outside the area of legitimate consideration” for the grievance and disciplinary panels.
For example, during a break in the grievance hearing, it was alleged that the managing director had given an instruction to dismiss Ms Gosain and that the manager hearing the grievance said that he was deliberately skipping the key issues raised in her grievance letter. It was also alleged that Mr Luhana, the manager hearing the disciplinary matter, made a comment in Punjabi which, when translated, meant that another employee “ripped apart [Ms Gosain’s] vagina”.
The EAT dismissed the appeal, holding that the employment judge was entitled to distinguish this case from the circumstances in Dogherty. The EAT in Dogherty had not laid down any firm rule of practice, meaning that the recordings in this case were not automatically inadmissible just because they were made covertly.
This tribunal (unlike the one in Dogherty) had struck the right balance when it considered 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 order made by the judge on that basis was not excessive.
The full tribunal would now assess the cogency of the recordings and their impact on the issues which it must determine.
This case reiterates the fact that tribunals have a very broad discretion when making case management orders.