“Education, too?”: tips for investigating sexual allegations in schools and higher education settings
In Punjab National Bank (International) Limited and others v Gosain UKEAT/0003/14, the EAT held that covert recordings of public and private conversations at disciplinary and grievance meetings were admissible in evidence, and could be considered by the Tribunal when it came to determining the case at full hearing.
Ms Gosain was employed by Punjab National Bank (“the Bank”) from 3 May 2011 until her resignation at the end of January 2013. Prior to her resignation, Ms Gosain attended grievance and disciplinary meetings, and recorded both public and private discussions connected with those meetings. During a break in her grievance meeting, the Bank’s Managing Director gave an instruction to dismiss Ms Gosain. Further, the manager hearing the grievance said he was deliberately skipping key issues raised in Ms Gosain’s grievance letter (namely, that she was not being allowed a proper lunch break and concerns around her pregnancy). With regard to Ms Gosain’s disciplinary hearing, the manager conducting the disciplinary meeting made degrading sexual comments about her during a recess.
Ms Gosain brought claims against her employer alleging sexual harassment, sex discrimination and constructive unfair dismissal, citing her covert recordings as evidencing discriminatory conduct. The Bank, however, sought to argue that the recordings of the managers’ and Managing Director’s private conversations were inadmissible.
At a preliminary hearing on 16 December 2013, the Tribunal ruled that this was not the case, finding that in light of previous caselaw, the “comments which are alleged to have been recorded, if said, fall well outside the area of legitimate consideration of the matters [to be determined] by the grievance and disciplinary panels respectively”. The Managing Director’s comments and those of the managers conducting Ms Gosain’s grievance and disciplinary meetings did not constitute the type of private deliberations which would otherwise take place in relation to the specific matters to be considered at those meetings. Further, the Tribunal could see no public policy reason why the comments made, even though made in private, should be protected.
The Bank appealed, arguing that the Tribunal had erred in law and reached a perverse conclusion in finding that the balance of preserving the privacy of internal discussions against the general rule that evidence should be admissible at trial had been incorrectly weighted in favour of the latter. The EAT disagreed, upholding the first instance ruling and dismissing the Bank’s appeal.
Employers therefore need to be careful when holding any grievance or disciplinary (or indeed, any other) meetings with employees in light of this case, particularly given the ease with which an individual can make covert recordings of these meetings on their mobile phone or other electronic device. Managers should be careful about what they say and how they conduct themselves before, during and after any such discussions. Simply because a conversation is “private” or has been recorded without someone’s knowledge does not automatically render it inadmissible in evidence, and the Tribunal can exercise wide discretion in this regard.
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