Can covert recordings be used as evidence in tribunal proceedings?

16.05.13

Although it may seem unfair, the answer is yes - in certain circumstances. The EAT recently confirmed in Vaughan v London Borough of Lewisham that just because evidence has been obtained covertly, this does not mean that it cannot be relied on in tribunal proceedings. Whether secret recordings will be admitted depends on whether the claimant can show that they are sufficiently relevant to their claim.

The facts

In support of her disability discrimination, whistleblowing and unfair dismissal claims against Lewisham Council, Ms Vaughan sought to rely in evidence on over 39 hours' worth of covert recordings made on her dictaphone. The recordings were of discussions and meetings between her and her colleagues and managers. Ms Vaughan claimed that these recordings confirmed her version of the interactions between those involved and also showed that the notes made by her employer were inaccurate (including those of a disciplinary hearing).

When making an application to have the recordings accepted as evidence, Ms Vaughan did not make the recordings or any transcripts available. She also failed to give detailed reasons as to why the recordings should be admitted, indicating only that they 'prove her case' and 'show that the Council and its staff have lied'.

The decision

The employment judge refused Ms Vaughan's application. The EAT then dismissed her appeal on the basis that she had failed to provide sufficient information as to why the recordings were relevant and, therefore, why they should be used as evidence.

The EAT made it clear, however, that this did not mean that covert recordings could not be admissible. It noted that, although covert recordings are "very distasteful", this does not necessarily make them inadmissible.

If Ms Vaughan was to make a fresh application to the employment tribunal producing the transcripts and tapes of the material, together with a clear explanation of why they are relevant she might get a different result. The EAT commented that, "It is in our view highly unlikely that on such an application the Employment Judge would rule all 39 hours' worth of material relevant or admissible, but it might be another matter if the Claimant made a focused and selective application asking for permission only in relation to a much more limited quantity of material."

Comment

Vaughan v London Borough of Lewisham confirms that just because evidence has been obtained without the employer's knowledge, does not mean that it cannot be relied on in tribunal proceedings. Whether covert recordings will be admitted depends on whether the claimant can show that they are relevant. For this a claimant will need to provide sufficiently specific details to allow an employment judge to rule on proportionality and decide whether it is necessary in the interests of justice to allow the recordings to be admitted in evidence.

The EAT's decision is not surprising in that it follows the 2006 case of Chairman and Governors of Arnwell View School v Dogherty. In that case the EAT allowed a teaching assistant who covertly recorded her own disciplinary hearing to use it as evidence in her unfair dismissal claim. The EAT rejected the argument that just because recordings were made clandestinely they should be excluded on the grounds of illegality. It also refused to accept other arguments based on the school governors' right to privacy.

The Dogherty case did, however, impose some limitations on the right to use a covert recording. The EAT found that a covert recording of the private deliberations of the disciplinary panel was not admissible on grounds of public policy. The EAT made it clear that only the parts of the proceedings where the employee was present can be admitted, other than in limited circumstances (e.g. in a discrimination case if the decision was taken by a panel which gave no reasons for its decision).

In practice

  • Employers should remember that it is relatively easy for employees to make secret recordings, e.g. using a dictaphone or mobile phone.
  • HR and Line Managers should be aware that covert recordings could be used as evidence in tribunal proceedings. Meetings and discussions should, therefore, always be conducted in accordance with good practice and the relevant procedure.
  • Consider expressly prohibiting the right to record meetings in the disciplinary policy. This might influence a tribunal deciding on the admissibility of covert evidence.
  • When deliberating in private, disciplinary panels should keep a confidential note of their discussions, particularly if there is the potential for a discrimination claim.
  • It is always good practice to take notes of a meeting and to send a copy to the employee.

Vaughan v London Borough of Lewisham UKEAT/0534/12

Key contacts

Joan Cradden

Joyce Cullen

Tony Hadden

Lynne Marr

Paul McMahon