In this case, the employee (G) resigned following both a grievance and a disciplinary hearing and brought claims of sexual harassment, sex discrimination and constructive unfair dismissal. She secretly recorded both the open hearings and the private conversations of the panels during breaks in the hearings.
G’s employer, a bank, objected to the admissibility of the private content of the recordings. The bank relied on a previous EAT decision (Chairman and Governors of Amwell View School v Dogherty), in which it was decided that the covert recording of the private deliberations of the disciplinary panel was not admissible as evidence on grounds of public policy.
The tribunal decided at a preliminary hearing that all of the recordings, including the private discussions, were admissible as evidence on the basis that the alleged comments fell outside the area of legitimate consideration of the matters being considered. One of the alleged comments was an instruction from the bank’s managing director to dismiss G; another was a manager stating that he was deliberately skipping key issues she had raised in her grievance. In the tribunal’s view, this meant that the private discussions should not be protected for public policy reasons. The bank appealed to the EAT.
The EAT agreed with the tribunal’s decision and dismissed the bank’s appeal. It considered that the judge had been entitled to find that the private comments recorded were not the type of comments that fell within the principles established in Dogherty since they were not deliberations relevant to the matters being considered in the grievance and disciplinary hearings. The recordings could therefore be used in evidence at the tribunal hearing.
It is relatively easy for individuals to make recordings of disciplinary or grievance hearings. Employers should ensure that their policies include an express prohibition of the recording of hearings without consent. However, they should also be mindful of the possibility that covert recordings might be made and that any inappropriate comments could be used as evidence in a subsequent tribunal hearing.
A copy of the EAT decision is available here