Punjab National Bank (International) Ltd & Ors v Gosain

Covertly made recordings are not inadmissible merely because they were made covertly. Where they are relevant, an Employment Tribunal must balance the general admissibility of probative evidence against the public-policy interest in preserving the confidentiality of genuine private deliberations during internal grievance or disciplinary processes.

That protection does not necessarily extend to comments falling outside legitimate deliberation of the matters under consideration. The admissibility decision is a case-management matter within the Tribunal's wide discretion. An appellate court may intervene only on an error of law and will not substitute its own assessment merely because a different balance could have been struck.

The claimant brought claims of sexual harassment, sex discrimination and constructive unfair dismissal against her employer and others. Before resigning, she covertly recorded public and private conversations connected with grievance and disciplinary hearings.

At a preliminary hearing, Employment Judge McNeill QC ruled that the recordings were admissible. She found that the alleged private comments were outside the legitimate deliberations of the grievance and disciplinary panels and, alternatively, that no public-policy reason justified excluding them.

The respondents appealed that ruling, contending that the recordings should be excluded to protect the confidentiality of internal deliberations and that the admission order was too wide. A separate appeal against refusal of a postponement had become moot.

1. Appeals dismissed. Employment Judge McNeill QC made no error of law in admitting the recordings. The appeal against her ruling therefore failed, and the appeal concerning postponement was also dismissed.

2. The fact that recordings were made covertly did not itself justify their exclusion. The governing exercise was to balance the general rule that relevant evidence is admissible against the public-policy interest in maintaining confidentiality for private deliberations in internal grievance and disciplinary processes. The earlier decision in Amwell View School Governors v Dogherty [2007] ICR 125 did not establish a firm rule of practice requiring exclusion.

3. The Employment Judge permissibly distinguished Amwell. The alleged comments did not form part of deliberations on the matters which the panels had to decide. They were therefore outside the type of private deliberation which parties would ordinarily expect to occur. In any event, the Judge was entitled to conclude that the nature of the alleged comments did not warrant public-policy protection overriding admissibility.

4. The Employment Tribunal had a wide case-management discretion. The appellate tribunal could interfere only for an error of law. The conclusion reached was not perverse in the legal sense, and the order was not excessively broad. The full Tribunal would assess the recordings' cogency and their effect on the issues at the substantive hearing.

• Employment Appeal Tribunal: dismissed the respondents' appeal against Employment Judge McNeill QC's ruling of 16 December 2013 admitting the recordings; also dismissed the appeal relating to Employment Judge Smail's refusal of a postponement.

• Employment Tribunal: Employment Judge McNeill QC ruled that the disputed private recordings were admissible at the full hearing.