In a recent case the tribunal were asked to consider
allowing evidence that was obtained by the Claimant secretly recording her
grievance and disciplinary meetings.
This included the managers’ private discussion, when she was out of the
room. The comments made by her manager
when she was out of the room included an explicit discriminatory remark, as
well as a comment by the manager that he was deliberately skipping key issues
in the grievance. Unsurprisingly the
employer did not want the tribunal to hear these discriminatory comments during
the hearing of the Claimant’s discrimination claim.
The secret recording was permitted as admissible
evidence. It was recognised by the Judge that it was important for an employer
to be able to deliberate in private about the grievance and disciplinary
issues, however the comments made by the manager could not be said to be part
of their legitimate consideration of those matters.
This serves as another reminder that employers should not
say or write anything that they do not want to be repeated. Covert recordings are increasingly being
allowed as evidence in tribunal claims.
This case is significant as employers must be aware that covert
recordings of private discussions which
are not part of the legitimate consideration of the relevant issues are also
likely to be permissible as evidence.