Are Covert Recordings Admissible?

Sun, 11 Jan 2015

Charles Crow reviews recent decisions in relation to covert recordings by employees and the implications for Tribunals and employers.

With the advance of technology one does not have to be particularly well off, particularly skilled in the art of deception, or a would-be James Bond to successfully record a meeting without the knowledge of the other attendees.  And so it seems; the prospect of the surreptitious recording of disciplinary and grievance meetings, even performance meetings or ‘one-to-ones’, has increased.  Whilst many such recordings prove to be unfruitful fishing expeditions; once in a while they reel in a big fish, by way of proof of unfairness, ill-treatment and sometimes clearly discriminatory attitudes.  When this occurs, an attempt is usually then made to introduce the recordings (usually by way of transcript) into evidence before the tribunal, leading to a dispute as to admissibility - given the covert nature of the recording.  Many labour under the misapprehension that covertly recorded evidence will almost always be excluded.  Recent caselaw has shed some light on the subject.

A distinction has been drawn (see Amwell School v. Dogherty [2006] UKEAT 0003/14/0701) between the ‘open’ and ‘private’ sections of a procedure.  For example, different considerations might apply as between the disciplinary or grievance ‘hearing’ (at which the subject employee is present) and the private deliberations of the panel (which may take place after the employee is asked to leave the room, perhaps without removing all of their belongings).  It is, of course, the latter discussion that might prove the most illuminating for the employee.  But even the manner, tone and content of the discussions taking place during the hearing itself might be considered potentially supportive of the employee’s case.  The Appeal Tribunal noted that there would be an expectation that the open part of a hearing would be recorded in some way (by a note/minute for example), but probably not the latter.

In Amwell it was noted that a balance must be drawn between the general rule of admissibility of relevant evidence and the public policy/public interest in preserving confidentiality in private deliberations/conversations. It is perhaps likely to be the case that the more relevant/probative the comments that have been recorded, the more likely it is that the comments would not have been made had it been known that the comments were not made ‘in private’ and ‘off the record’.  However, insofar as the comments assist the Tribunal in determining motivations/drawing inferences; the argument on the ground of relevance may be strong.

The distinction between ‘open’ and ‘private’ may be harder to draw in conversations that are not part of a formal ‘hearing’ process.  In Vaughan v. Lewisham LBC [2013] UKEAT 0543/12/01202 (where the absence of a transcript or clear detail as to the content of the recording meant that it was not possible for the ET judge to assess the relevance, so as to form a view as to whether the covert recording should be admitted), it was noted that relevance and admissibility are elastic concepts involving consideration of degree and proportionality.  True enough, but not of itself helpful guidance in the resolution of such questions.  In commenting on the public interest/public policy question, the EAT commented that “the practice of making secret recordings in this way is, to put it no higher, very distasteful” before immediately adding that “employees such as the Claimant will no doubt say that it is a necessary step in order to expose injustice.

In the recent case of Punjab National Bank v. Gosain [2014] UKEAT/0003/14/SM, the Claimant alleged sexual harassment, sex discrimination and constructive unfair dismissal.  She produced covert recordings of the disciplinary and grievance hearing, including the panel deliberations.  The private deliberations included comments: that the managing director had directed dismissal; that key issues in the grievance would be deliberately skipped; and the disciplinary chair made an offensive (derogatory and sexually offensive) remark about the Claimant’s relationship with another employee.  The entirety of the recording was ruled admissible. It was noted that the remarks did not relate to matters properly under consideration by the panels, and the offensive comment was so extreme as to outweigh the public policy interest.

For employers, the following learning perhaps arises: covert recordings are more and more likely and will not necessarily be ruled inadmissible.  Remarks beyond the normal and proper process of deliberation or management should be discouraged (and will be particularly susceptible to admission).  Express prohibitions on the recording of meetings without permission can be included in handbooks/policies and employees can be asked, at the beginning of meetings/hearings, to confirm that they are not recording (the impact of an employee misleading by response may be significant). 

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