Admissibility: Covert Recordings

Thanks to Peter Taheri of 5 Essex Court for preparing this case summary

If an employee hides a tape recorder and captures comments made during his employer's private deliberations during a grievance and disciplinary hearing, is that evidence admissible in an employment tribunal?

Normally yes, especially if it does not form part of the employer's deliberations on the matters in question, held the EAT in Punjab National Bank v Gosain.

The employer was alleged to have made wholly inappropriate comments about the employee when she was out the room; these had (allegedly) been captured on a covert recording.  The EAT stated the correct test is to undertake a balancing exercise, setting the general rule of admissibility of relevant evidence against the public policy interest in preserving the confidentiality of private deliberations in the internal grievance/disciplinary context.

The employment judge had correctly distinguished Amwell View School Governors v Dogherty, as the private material recorded in this case fell well outside the area of legitimate consideration of matters within the grievance and disciplinary panels' remit.