The Employment Appeal Tribunal ("EAT") has recently held that secret recordings of private deliberations made in the course of grievance and disciplinary proceedings can be used as evidence in a Tribunal. We consider what this means for employers.
What the law says
Rule 41 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that Tribunals are not bound by any rule of law relating to what can be used in evidence. This gives Judges a wide discretion in terms of what to allow, although case law recommends that they balance the need for claims to be tried on all available and relevant evidence with the fact that the discussions of those put in a position of adjudication should be protected.
Tribunals examining this issue have considered it "somewhat distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly or fairly". There is a recognition that private deliberations can be an essential part of reaching a fair decision by allowing members of a panel to 'stress test' employees' arguments, for example by playing devil's advocate.
So when will covert evidence be allowed?
Tribunals should hear all evidence that is relevant, and the legal position can be summarised as follows:
- Open hearings - even if an employee secretly records a hearing, this is likely to be admissible as it is essentially the same as a verbatim note being taken.
- Private deliberations - covert recording of these 'closed' sessions (i.e. understood by all parties to be private conversations amongst the adjudicating panel) will not usually be admissible but will be considered where they assist the Tribunal in reaching decisions upon issues involving discriminatory or malicious conduct.
This was the basis for the EAT's decision in Punjab National Bank (International) Ltd & ors v Ms S Gosain where they found that the vulgar and discriminatory comments made by the adjudicating panel in private fell outside the deliberation of the actual issues that needed to be considered as part of the decision making process and were therefore outside the protection applied to genuine deliberations by a panel.
Top tips for those involved in disciplinary or grievance decision making processes
- Set 'ground rules' in policies - expressly stating that recording of hearings is forbidden helps set expectation levels; employers then have a stronger footing on which to instruct an employee to cease recording should they become aware this is taking place.
- Focus on the issues - avoid discussions or statements that could be considered discriminatory or defamatory, or that could suggest the matter has been prejudged in any way.
- Ensure full reasons are given in the outcome - this means evidence of private deliberations is less likely to be admissible as the relevant evidence (and reasoning) is already set out in the outcome letter.
- Keep accurate notes - this should go without saying in respect of open hearings, but employers should also consider taking minutes of private discussions. These do not need to be given to employees, but a record of what was said can assist in refuting any subsequent allegations of discrimination.