Watching You, Watching Me: The Admissibility of Covertly Obtained Evidence in Employment Tribunals

Wed, 05 Jun 2013

By Fatim Kurji
Should employees – or employers – be able to use secretly taped recordings as evidence when bringing or defending claims in the Employment Tribunal? In the recent case of Vaughan v London Borough of Lewisham and Others [2013] UKEAT 0534_12_0102 the Employment Appeal Tribunal confirmed the long established position that the method in which the evidence has been obtained does not affect its relevance; and relevance is the guiding principle when determining whether evidence is admissible.
 
Background
 
The Claimant brought nine claims against the Council arising from her employment and subsequent termination including claims of disability discrimination, victimization and harassment and whistleblower detriment. Three of those claims were consolidated, heard over twenty days in early 2012 and ultimately dismissed. The Respondent made an application in respect of the cost of those proceedings, and the Claimant was ordered pay a third of the costs, to be assessed by a County Court.
 
Of the remaining claims, three more were consolidated, to be heard over 28 days towards the end of the year. In relation to those claims, a Pre Hearing Review was scheduled, where one of the substantive issues to be determined was whether the Claimant should be entitled to rely at the hearing on recordings she had made covertly, using a dictaphone, of a large number of interactions between herself and colleagues and managers which she said were relevant to her claim. 
 
At first instance, Employment Judge Balogon determined that the Claimant was not so entitled and that the evidence should not be admitted. She noted that the Claimant’s Particulars of Claim referred, at several points, to the covert recordings; in each case there was an account of the contact or meeting and a statement to say that the account was corroborated by a recording. In some instances the Claimant stated that contemporary accounts made by the Respondent were either inaccurate or deliberately falsified. The Claimant’s application requested to “submit a number of recordings in relation to the above claims”. She did not provide copies of transcripts nor of the tapes or their digital copies. The Claimant justified this position by stating:
“I do not believe that it is just and equitable for the Respondents to know precisely what recordings I will be relying on ahead of disclosure. This will clearly prejudice my case and put me at a disadvantage. I believe that it is only necessary to advise how many recordings I wish to submit and possibly how long they are in total, and state the relevance of those recordings.”
 
The Employment Judge partly based her decision to refuse the Claimant’s application on the basis that “Given the clandestine nature by which the Claimant obtained recordings, their credibility may be affected by the risk that they have been tampered with or that they are unreliable in technical terms. To mitigate against this, I informed the Claimant that if the recordings were to be admitted, she would at the very least have to arrange for them to be independently transcribed".
 
EAT ruling
 
The Claimant appealed to the Employment Appeal Tribunal against that finding. In determining whether the Claimant should be entitled to rely on the covertly obtained evidence, the EAT made clear that “the practice of making secret recordings in this way is, to put it no higher, very distasteful…”. It recognised, however, that Claimant might respond by claiming that such action was “a necessary step in order to expose injustice” but regarded these matters, and indeed the fact that on several occasions the Claimant expressly denied making such recordings, as irrelevant to the issue at hand.
 
In considering whether to admit the recordings into evidence, the EAT concluded that the law was well established and that “covert recordings are not inadmissible simply because of the way in which they were taken may be regarded as discreditable”. The case of Dogherty v Chairman and Governors of Anwell View School UKEAT/0243/06 clearly articulates this position. It disagreed with the reasoning of the Employment Tribunal in relation to the credibility of the recordings, noting “…we are not convinced, certainly on the material that we have seen, that it should have been treated as a precondition of admissibility that the recordings be independently transcribed in their entirety, which would of course involve very great cost for the Claimant”.  The EAT stated that the Claimant’s own transcription would, in the first instance, suffice. Without any evidence that the tapes had been tampered with, the mere possibility of that having happened ought not to have influenced the Employment Tribunal’s decision.
 
Although the EAT ultimately dismissed the appeal on the basis that the Claimant had not provided the transcripts or the recordings, it was clear in stating that “we do not believe that there is any absolute reason why none of these recordings should be admissible in evidence”. This restates the position that Tribunals are not concerned with how the evidence came to be obtained; only whether it is relevant to the issue in dispute. This keeps open the door for employers and employees alike to surreptitiously record meetings with the intention that these might, one day, be played for all to hear.
 
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