Can covert recordings be used as evidence in Industrial Tribunal claims?

August 20, 2013

The question of when secret recordings might be used as evidence in the context of employment claims has recently started to become an issue for employers and is likely to remain a concern given the increasingly sophisticated nature of smart phone technology and the availability of other inexpensive recording devices.

The EAT has recently ruled on the admissibility in evidence of such covert recordings in the case of  Vaughan v London Borough of Lewisham (2013).

In this case the original tribunal Judge had refused the claimant’s application to adduce in evidence 39 hours’ worth of covert recordings of contact between herself, managers and other colleagues. The EAT dismissed the appeal on the basis that the Judge was correct in refusing the application as neither the recordings themselves nor transcripts had been made available. The EAT went on to hold, however, that although they found the practice of making secret recordings distasteful, there was no reason why none of the recordings should be admissible in evidence as some of the material could potentially be relevant to the case and ought to be admitted in the interests of justice.

Following this decision it is clear that any application to adduce such evidence must be focused on a limited selection of relevant material and supported by transcripts

Vaughan reinforces the previous decision of the EAT in Chairman & Governors of Amwell View School v Dogherty (2007) which held that unauthorised recordings made by an employee of disciplinary or appeal hearings is admissible in evidence provided that it is relevant to proceedings. In this case it was also held, however, that evidence of recordings made of the private deliberations of panels in disciplinary or appeal hearings should not be admissible. The EAT held that this would be contrary to public interest by inhibiting panel members from entering into open discussion. The EAT noted that had Mrs Dogherty’s claim involved discrimination this public interest may be outweighed by the interests of justice and the evidence found to be admissible.

In light of these decisions employers may wish to review their disciplinary procedures to ensure that clear ground rules for the conduct of hearings are set out and the recording of hearings by employees explicitly prohibited. Panels may also wish to keep a confidential note of any private deliberations if they are concerned that allegations of discrimination may arise in future.

Please note: The content of this article is for information purposes only and further advice should be sought from a professional advisor before any action is taken.