Employment Weekly Briefing – 15 March 2013
 

Can covert recordings be used as evidence in tribunal proceedings?

Yes - a recent case reminds us that recordings made secretly can be admissible as evidence before an employment tribunal, in certain circumstances.

Tribunals have a wide discretion to determine what evidence is admissible and, generally, evidence will be admissible if it is relevant to the issue to be determined before the tribunal. However, even if relevant, a tribunal can also choose to exclude evidence, usually because the evidence is disclosed too late in the proceedings; the evidence would, if admitted, breach Human Rights legislation; or, if the evidence should be excluded as a matter of public policy.

Employers often ask whether recordings made by an employee without the employer's knowledge would be admissible as evidence at tribunal. The answer, whilst it may seem unfair, is yes - in certain circumstances. We take a look at a recent case, which clarifies this issue.

Vaughan v London Borough of Lewisham

In support of her discrimination claim, Ms Vaughan (V), sought to rely in evidence on 39 hours' worth of recordings that she had made covertly on her Dictaphone. The recordings were of a number of interactions between herself and her managers or colleagues. V claimed that the recordings confirmed her accounts of the contacts or meetings and also showed that the contemporary accounts made by her employer, Lewisham Council (L), were inaccurate or deliberately falsified. In making an application to submit the recordings as evidence, V gave only brief reasons as to why the admission of the recordings was important and did not supply copies of the tapes or transcripts. The employment judge refused V's application. V appealed.

The EAT, whilst not entirely sure about the judge's reasoning, upheld the decision to refuse V's application. This was because V had not provided enough information for the judge to form any view on the relevance, and therefore the admissibility, of the recordings. V had not provided transcripts of the tapes and was not willing to answer detailed questions about why she thought the tapes were relevant. Therefore, in the circumstances, the judge had no alternative but to refuse the application.

However, the EAT made clear, that this did not mean that covert recordings could not be admissible. In fact, the judge said that whilst secret recordings might be "very distasteful", they are not inadmissible simply because the way in which they were taken may be regarded as discreditable. It was open to V to make a more focused application, properly supported by transcripts of the material sought to be relied on.

Chairman and Governors of Amwell View School v Dogherty

Ms Vaughan's case follows the position established by the EAT in the case of Chairman and Governors of Amwell View School v Dogherty, in 2006. In this case, the EAT held that a teaching assistant who secretly recorded her own disciplinary hearing could use that recording in evidence in her unfair dismissal claim before the tribunal.

The EAT rejected the argument that the admissibility of the recordings breached the school governors' rights to a private life under Article 8 of the European Convention on Human Rights. This was due to the fact that role the governors' undertook and the work which they carried out were already in the public domain. The EAT also rejected the argument that the fact the recordings were made "clandestinely" meant that they should be excluded on the grounds of illegality. The recordings were admissible and Ms Dogherty (D) could therefore rely on them as evidence to support her claim.

However, this case did confirm that it is only the parts of such recordings where the employee was present that can be admitted as evidence. D also had recordings of the governors' private deliberations during the disciplinary process. The EAT held that there was an important public interest in parties before disciplinary and appeal proceedings complying with the “ground rules” upon which the proceedings in question are based. The understanding that such deliberations would be conducted in private and remain confidential is essential in ensuring a full and frank discussion between those tasked with making a decision.

What does this mean for employers?

Employers should be aware that covert recordings of disciplinary meetings could be used by an employee as evidence in a tribunal claim. Given the prevalence of employees' carrying mobile phones and other devices with a recording function, employers should be alert to the possibility that an employee might record a meeting.

Employers should of course ensure that good practice and appropriate procedures are followed at all times during meetings to ensure that any covert recording made would not be damaging evidence.

Employers could, in their disciplinary procedures, expressly prohibit the recording of any meeting. This might sway the tribunal towards not allowing the recording to be used in evidence.

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This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered.

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