Nowadays almost every employee has access to recording equipment thanks to the modern day smart phone. There are many apps or inbuilt programmes that allow the device owner to make recordings. This can present a new challenge to employers where employees covertly record disciplinary and grievance meetings particularly where this includes deliberations and adjournments.
In the recent case of Punjab National Bank (international) Ltd and others v Gosain, the EAT upheld the tribunal’s decision that covert recordings made by an employee of the public and private discussions of the panel at her grievance and disciplinary hearings could be admitted as evidence at a final hearing. The EAT held that in this case the private comments made by the panel were not part of their deliberations on the matters to be decided. It would be for the Tribunal to determine the relevance and cogency of the evidence at the final hearing but it was admissible.
The EAT indicated in another case from 2012, Vaughan v London Borough of Lewisham and Others that while the practice of covert recordings is distasteful, this does not necessarily render evidence obtained in that way inadmissible. However, where a party is seeking to rely on covert evidence, it should make a specific application to the tribunal seeking permission to do so. In an older case, Chairman and Governors of Amwell View School v Dogherty , the EAT held that the recording of the private deliberations of the disciplinary panel was not admissible on grounds of public policy.