Employment Appeal Tribunal (EAT) allows covert recordings made by employee to be used as evidence
Friday 21st March 2014
It is ultimately a matter for any tribunal to determine the admissibility of any evidence, however the case of Chairman and Governors of Amwell View School v Dogherty UKEAT/0243/06 laid down some guidance in that whilst the recording of the hearing itself could be used, the private deliberations of the disciplinary panel could not.
In the more recent case of Punjab National Bank (International) Ltd and others v Gosain UKEAT/0003/14 the EAT went against this guidance and allowed the private conversations of the panel to be allowed as evidence as well.
The reason it allowed them is that it said that in the Gosain case, the facts were different to those in Dogherty. In Dogherty they were genuine deliberations on what evidence they had just heard and how they were arriving at their decision. In the Gosain case part of the recording was of the Managing director of the bank giving an instruction to dismiss Ms Gosain and the chair of the hearing stating he was deliberately skipping key issues raised by Ms Gosain. Clearly these were not “part of” deliberations and so were identified as being different to the facts in the Dogherty case and the EAT could then depart from its earlier decision.
This means that employers need to ensure that they follow a fair procedure as well as being fair in any deliberations. If you want to ensure recordings are not made at all then it would always be advisable to retire to a separate room where there can be no hidden recording devices in order to have a private discussion.
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