STOP PRESS: Covert Recordings of Private Discussions at Grievance and Disciplinary Hearings Can Be Admissible

In a recently reported case the Employment Appeal Tribunal (“EAT”) determined that covert recordings made by an employee of both public and private discussions of a grievance and a disciplinary hearing panel could be admitted as evidence at a final hearing. The EAT commented that much would depend on the exact circumstances surrounding the recording and a Tribunal may decide that private deliberations are not admissible on the grounds of public policy.  However, the EAT commented by way of example that if the matter involved discrimination and the recording was the only evidence relating to that, it is likely to be admissible.

In this particular case the recordings allegedly indicated that the managing director of the employer  had given specific instructions  that the employee  be dismissed. Furthermore, the recordings suggested that the manager hearing the grievance stated that he was deliberately not addressing the employee’s key issues in her grievance letter relating to taking a proper lunch break and issues concerning her pregnancy. The Employment Appeal Tribunal decided that this evidence could be admitted.

It is important that employers’ relevant policies contain an express prohibition against covert recordings.  However, as this case makes clear, it would be a matter for a Tribunal to determine whether such evidence is admissible.  Bearing in mind how easy it is to make recordings on a mobile phone, employers should always ensure that any discussions, whether public or private, that take place at such hearings are appropriate.