Mon, 21 Apr 2014
Russell Holland examines the EAT’s ruling in Punjab National Bank v Gosain UKEAT/0003/14/SM, the latest in a series of rulings which consider the admissibility of covert tape recordings in employment tribunal proceedings.
In Punjab National Bank v Gosain UKEAT/0003/14/SM the EAT has given a judgment about the admissibility of covert recordings. The Claimant was employed by the Respondent bank from May 2011 until she resigned claiming constructive dismissal, sexual harassment and sex discrimination in January 2013. At a grievance meeting in November 2012 and a disciplinary hearing in January 2013, the Claimant had recorded both private and public conversations without the knowledge or consent of the Respondent. These records were disclosed in July 2013. The Respondent objected to these recordings being admissible but at a pre-hearing review, the Tribunal Judge found that they were admissible.
The Tribunal Judge considered three authorities, Amwell View School Governors v Dogherty  ICR 125 (Mr Recorder Luba QC and members), Vaughan v London Borough of Lewisham and Ors  UKEAT/0534/12 (Underhill J, as he then was, and members) and Williamson v Chief Constable of Greater Manchester Police UKEAT/0346/09, 9 March 2010 (HHJ Birtles sitting alone).
In Dogherty the employee had made covert recordings, which a Tribunal Judge found were admissible. The employer’s appeal was upheld partly in that the recordings were found not to be admissible on the basis that it was essential that the members could deliberate in private if they were to have a full and frank exchange of views.
In Vaughan the employee wanted to rely on covert recordings but refused to provide them prior to a pre-hearing review. The EAT described the practice of covert recordings as “distasteful” but, following Dogherty, found that the mere fact a recording was covert did not make it inadmissible. However, given that the employee had refused to provide the transcripts the Judge had no choice but to find that the recordings were not admissible because it was not possible to reach a conclusion on their relevance.
In Williamson a covert recording was not permitted because it was found it was not relevant to a claim for discrimination.
EAT ruling in Gosain
In Gosain HHJ Clark upheld the Tribunal Judge’s decision to distinguish Dogherty. The Tribunal Judge had concluded that the comments (especially a graphic comment about the Claimant’s vagina) which had been recorded, if they had been said, fell “well outside the area of legitimate consideration of the matters which fell to be considered by the grievance and disciplinary panels respectively…” and therefore fell outside the ground rules principles discussed in Dogherty. Accordingly, the factors that the Tribunal took into account when determining admissibility were that the comments were not made in the context of private deliberations in relation to a disciplinary or grievance meeting. Further that there was no public policy reason not to allow the records to be admitted. Therefore there was no exception from the usual rule that relevant evidence is admissible.
HHJ Clark reminded himself that the Tribunal had a wide discretion to make case management orders and considered that Dogherty was not laying down a firm rule of practice but rather making it clear that a balancing exercise had to be carried out. He then found that the Tribunal Judge had carried out that balancing exercise and as such there was no error of law and it therefore could not be said to be perverse.
For employers, potential lessons are that great care should be taken about what is said at meetings because if a recording takes place, without their knowledge, it could still be admissible.
Employers could potentially seek to protect themselves by having a policy that covert recordings are not taken at meetings. With such a policy, while admissibility could still be an issue, the fact that an employee went against that policy could count against them.
For employee representatives provided with covert recordings, the key lessons seem to be that the relevance of the recordings should be identified and appropriate disclosure takes place as early as possible. Representatives wishing to admit such evidence should be ready to provide submissions that allow a Judge to appropriately carry out a balancing exercise and Gosain provides clear authority, which will assist.
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