Covert recording – can it be used as evidence in tribunal proceedings?

The EAT has held that recordings made secretly can be admissible as evidence before an employment tribunal (ET) in certain circumstances.

The claimant (Ms Vaughan) was employed by the respondent (London Borough of Lewisham). In support of her discrimination claim the claimant sought to rely in evidence on 39 hours’ worth of covert recordings which she had made of contacts between herself and her managers or colleagues on her dictaphone. The claimant claimed that the recordings confirmed her accounts of the contacts or meetings and also showed that the contemporary accounts made the respondent were inaccurate or deliberately falsified. In her application to submit the recordings as evidence, the claimant 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 (EJ) refused the claimant’s application. The claimant appealed.

The EAT (Underhill J presiding), whilst critical about some of the EJ’s reasoning, upheld the decision to refuse the claimant’s application. This was because it was not possible for the EJ to form any view on the relevance and hence the admissibility of the tapes. The claimant had not provided transcripts of the tapes and refused to answer detailed questions about why she thought the tapes were relevant. Therefore, in the circumstances, the EJ had no alternative but to refuse the application.

However, the EAT made clear that whilst the practice of covert recordings is “very distasteful”, they are not inadmissible simply because the way in which they were taken may be regarded as discreditable. Underhill J said that part of the material would be potentially relevant and admissible and that it was open to the claimant to make a more focused application, properly supported by transcripts of the recordings sought to be relied on together with an explanation of why they are relevant. If she did this, “she might get a different result”.

Employers must be alive to the fact that an employee may be covertly recording them on a mobile phone or other device in meetings and that this could be used as evidence in an ET claim. Of course if employers are carrying out good practice in accordance with procedures such evidence should not be damaging. Employers could expressly prohibit the recording of any meeting in their disciplinary policy which might convince an ET not to allow a recording to be used as evidence. ETs have a wide discretion to determine what evidence is admissible – the general rule is evidence will be admissible if it is relevant to the issue to be determined before the ET. If relevant, an ET can then choose to exclude evidence on the grounds that it has been disclosed too late in the proceedings; it would breach Human Rights legislation is admitted; or that it should be excluded as a matter of public policy.

Vaughan v London Borough of Lewisham and Others