Covert Recordings at Disciplinary Hearings – Can they be used as evidence?

For years there have been debates as to whether or not covert recordings can be used as evidence at employment tribunal. There have been several recent cases reaching contrasting conclusions including The City and County of Swansea v Gayle, MJM International v Kilday and the most recent The Punjab National Bank Vs Ms Gosain.

Previous Cases
In the case of MJM International v Kilday, the company had placed a bugging device in a bunch of artificial flowers located in the office of a former Director. The company argued that they had concerns over the Director’s loyalty to the firm and stated that they had used the device for ‘business strategic decisions.’ The Operations Director Mr Scott Kilday was found to have been unfairly dismissed following a resignation upon discovery of the device, and the employment tribunal held that the use of such a device was “conduct likely to destroy or seriously damage the degree of trust and confidence an employee is entitled to have in his employer.” The employee was awarded compensation amounting to £15,920 for loss of earnings.

In The City and County of Swansea v Gayle, the EAT held that an employer’s use of covert video recordings during an investigation into misconduct did not contribute to the employment tribunal’s original finding of unfair dismissal. The employment tribunal had originally concluded that the use of a private investigator to establish whether or not an employee was playing squash during working hours was ‘too thorough,’ given that there was already evidence that colleagues had seen the employee at the local sports centre when he was supposed to be at work. They also argued that this type of surveillance was a breach of Mr Gayle’s right to a private life under Article 8 of the European Convention of Human Rights. Nonetheless as highlighted, the EAT overturned this decision arguing that there had been no breach of privacy as the filming had taken place in a public setting; and that whilst they may not have particularly liked this method of investigation, this was irrelevant to whether or not the dismissal had been unfair.

The Punjab National Bank Vs. Ms Gosain
The most recent case addressing the issue of covert recordings at disciplinary is that of The Punjab National Bank and one of its employees Ms Gosain, in which the bank launched an appeal against Ms Gosain’s use of public and private covert recordings during her earlier employment tribunal. Ms Gosain had alleged claims of sex discrimination, sexual harassment and constructive dismissal, resigning after having attended a disciplinary and grievance hearing.
Mr Singh of The Punjab National Bank declared that the recordings, which were made between Ms Gosain and bank officials during several grievance and disciplinary hearings, were presented in a deliberately deceptive manner.
Mr Singh challenged the veracity of the recordings by alleging that the information presented was bias. He pointed out that she included only fifteen minutes of conversation she had during the grievance conversation with the bank, and that this stands in stark contrast to the thirty seconds of disciplinary dialogue she included as evidence.
The defence also evoked the Amwell View School Governors v Dogherty case of 2007 as an example of why this material should not be permissible as evidence. In this case, the covert recordings were of the ‘private’ deliberations of a disciplinary panel. The EAT argued that the parties involved would understand that these conversations would take place over the specific matters under consideration as part of the hearing and that these would remain private. Nonetheless, the EAT in the case of The Punjab National Bank, came to the conclusion that the recordings did indeed provide valid evidence at tribunal, denouncing the Dogerty case as being too dissimilar from Ms Gosain’s tribunal and therefore unable to influence a verdict in the bank’s favour.

Additional thoughts
The findings in the case of Punjab National Bank v Gosain, are naturally going to be of concern to employers and HR professionals alike who do not wish to have their deliberations regarding hearing decisions to be recorded or relied upon in evidence at tribunal. At a time of ever-evolving technology, it is all too easy to deploy some form of recording device without knowledge of its presence.
Whilst this case may suggest that covert recordings can be permitted as evidence when fighting a case at employment tribunal, it is important to remember that with all of the cases mentioned above there are individual factors that have contributed to each decision.

Nonetheless it may be useful to consider the following practical tips:

• Announce at the start that there should be no recording of any part of the hearing without the consent of all parties present.
• Make a request that all mobile phones or smart devices are switched off as part of the introduction to the hearing.
• Make a request that employees and their representatives remove their belongings from the room when taking an adjournment.
• Move into a different room when taking an adjournment part-way through or following disciplinary or grievance hearings.

Whilst every effort has been made to maintain accuracy throughout this article, Nationwide Employment Lawyers cannot accept responsibility or liability for any errors. This article is intended for guidance purposes  only and does not constitute specialist legal advice. Nationwide Employment Lawyers accept no responsibility or liability whatsoever for any action taken or not taken in relation to this article and recommend that appropriate legal advice be taken in all circumstances.