Covert Recordings

Helen O'Brien writes:

This article covers Covert Recordings in the workplace and is a case law update on the recent decision in Vaughan v London Borough of Lewisham and Ors [2013] UKEAT 0534_12_0102

The facts

The claimant suffered from depression and complained of disability discrimination, including victimisation and harassment, as well as unfair dismissal. She relied on a large number of interactions over a long period of time between herself and her colleagues and managers, with these being relied on either as actual acts complained of, or as evidence of an unlawful motivation.

Her pleaded case referred to covert recordings that the claimant said she had made. In each case, she gave an account of a contact or meeting and said that that account was confirmed by the recording, as well as also sometimes showing that the contemporary accounts made by, or on behalf of the respondents, were inaccurate or deliberately falsified. The recordings, captured on Dictaphone, were approximately 39 hours in length.

The decision: Employment Tribunal

The claimant made an application to the employment tribunal to adduce the recordings concerned in evidence. She did not supply copies of the transcripts or the tapes. The tribunal refused the application, as the claimant had failed to elaborate as to the relevance of the recordings and the tribunal had not, therefore, been satisfied that the recordings were of probative value.

In addition, given the extent of the recordings, the inevitable time and cost to the respondent of reviewing them, and the amount of tribunal time that would be needed to consider them, admitting such evidence would be disproportionate.

The decision: Employment Appeal Tribunal

It is now established law that covert recordings are not inadmissible simply because the way in which they have been taken may be regarded as discreditable (see Chairman and Governors of Amwell View School v Dogherty EAT/0243/06).

The EAT upheld the tribunal decision, but for different reasons. It had plainly not been possible for the tribunal to form any view on the relevance, and thus the admissibility, of the tapes, on the material that the claimant had produced. It was not enough simply to say that they all related to matters that were relied on in the pleadings. It is necessary in the case of any piece of evidence to assess how relevant it is, in what way, and also the extent to which the individual matters that may have been pleaded are themselves central to the allegations. This involves questions of degree and proportionality.

Furthermore, the tribunal could get nowhere without sight of the transcripts of the recordings, so that an informed view could be taken whether it was proportionate or necessary in the interests of justice that the recordings be admitted in evidence.

As a first step it should have been sufficient for the claimant to serve on the respondents her own transcripts with the underlying tapes. It is only at that point that a sensible view could be taken on whether the respondent would need, or wish to dispute the accuracy of the transcriptions, in whole or in part.

It followed that, although the EAT dismissed the appeal because the tribunal's order was right in the circumstances in which it was made, there was no absolute reason for none of these recordings being admissible in evidence. It was not implausible that parts of the material would be potentially relevant and ought to be admitted in the interests of justice. Thus, if the claimant were to make a fresh application to the employment tribunal, producing the transcripts and the tapes of the material on which she wished to rely, and accompanied them with a clear explanation as to the reasons for suggesting them to be relevant, she might get a different result. 

Although it is quite right that the general practice in the employment tribunal is that case management decisions should not be revisited unless there has been a material change of circumstances, there was no absolute rule to that effect, and exceptionally a party might be allowed a second bite of the cherry if that were in the interests of justice.

Full case decision:

http://www.bailii.org/uk/cases/UKEAT/2013/0534_12_0102.html