#MindYourMouth warning as secretly taped evidence is admitted in tribunal hearing.

21st May 2014

There's a warning to mind p's and q's as the sexist revelations of football Premier League chief executive Richard Scudamore go public, following hard on the heels of racist comments by Los Angeles Clippers' owner Donald Sterling, and an employment tribunal says that secretly taped evidence is admissible in an employment tribunal hearing
US billionaire Donald Sterling looks set to lose his Los Angeles Clippers basketball team over racist remarks recorded by his ex-mistress and Richard Scudamore has been hauled over the carpet by the Premier League for sexist banter in emails that were revealed by his PA.

But the threat posed by everyday modern technology, such as recording conversations on a mobile phone, is not restricted to high-flying sports leaders. An employment appeal tribunal judge has ruled that a secretly recorded conversation of managers discussing an employee involved in disciplinary hearings is admissible evidence.

In the case of Punjab National Bank (International) Limited v Gosain, the employee made recordings of her grievance and disciplinary meetings, including private comments that were made by her managers when she was out of the room. In the private comments, one manager referred to deliberately skipping some of the issues in her grievance and an explicit discriminatory remark was made.

When the employee brought a discrimination claim, the employer tried to block the use of the secret recording. But the employment tribunal decided it was admissible evidence, saying that the comments that were made in the conversation fell outside the employer's legitimate consideration of the relevant grievance and disciplinary issues. The employers challenged the first tribunal ruling but the decision has been upheld on appeal.

Covert recording used to be the stuff of secret agents, like the Le Carre novels or James Bond films, but nowadays everyone has easy access to the technology. Every modern mobile phone is a sensitive recording device, and there are no special skills or equipment needed to record audio or film footage of what's said and done behind closed doors. Although it was the extreme nature of the comments made by the employees of Punjab National Bank which resulted in them being taken into account, every manager should be reminded about taking care that discussions are above reproach, both within the hearing and in any private deliberations.
It is worth thinking about taking ownership of recording, and doing it publicly from the company side. This should encourage managers to avoid off-the-cuff comments they may later regret, as well as providing reassurance to employees that they are being given a fair hearing.

If you have any employment law queries, do contact Phil Hughes who is a solicitor with Mercers, and specialises in employment law. E-mail phughes@mercersalw.co.uk; or telephone 01491 572138.

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This is not legal advice; it is intended to provide information of general interest about current legal issues.

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