I suspect that, if asked, most people would assume that covert recordings cannot be admitted in evidence, based on general principles of fairness and natural justice. In Vaughan v London Borough Of Lewisham & Ors the Employment Appeal Tribunal considered this question. Ms Vaughan, who had raised a number of claims against Lewisham, made a blanket application that 39 hours of recordings she had covertly made at work should be admitted in evidence. The Employment Judge refused to admit the recordings. She had not been given access to any of the original tapes, or been provided with transcripts, and without knowing the contents of the recordings, she could not form a view on whether they were relevant to the allegations made.
On any reading of the matter Ms Vaughan is a serious litigant who was acting in person before the EAT. She had brought nine claims of which seven were before the EAT. Three were consolidated and dismissed after an employment tribnunal hearing which lasted for 20 days. An appeal to the EAT was rejected and that was in turn the subject of an appeal to the Court of Appeal (unresolved at the time of this EAT appeal).
She was also ordered to pay one third of the respondents’ costs in the concluded proceedings, estimated to total £260,000. Three of the remaining claims remain listed for an estimated twenty eight day hearing later this year. It is in the context of these remaining claims that the question of admissibility of covert recordings has arisen.
Ms Vaughan disclosed that she had secretly recorded numerous meetings with colleagues and managers. At a pre hearing review an Employment Judge determined that the recordings should not be allowed as evidence. This decision was appealed, along with the decision to award costs.
The Employment Appeal Tribunal reserved its decision concerning the costs award but confirmed that the Employment Tribunal Judge had been right to refuse the application as made by Ms Vaughan concerning the recordings, agreeing that it was impossible to tell whether it was in the interests of justice to allow them in. It did, however, go on to say that if Ms Vaughan framed her application in a more limited way, giving access to recordings and transcripts of them, a further application could succeed, and recommended that any such application be given consideration.
The Appeal Tribunal made a number of criticisms of the practice of making covert recordings:
We should say, in order to get this point out of the way, that the practice of making secret recordings in this way is, to put it no higher, very distasteful; but employees such as the Claimant will no doubt say that it is a necessary step in order to expose injustice. Perhaps they are sometimes right, but the Council has already made it clear that it will rely on the Claimant’s conduct in making these covert recordings as illustrative of the way in which her conduct had destroyed any relationship of trust and confidence between her and it. It will also rely, as relevant to credibility, on the fact that, as it says, when asked whether she had made such recordings she has on several occasions denied it. However, those are not points that are relevant to the present appeal. The law is now established that covert recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable.
Emphasising that, in other circumstances, the recordings may have been admitted in evidence the judgment deals with the point on this basis:
It follows that, although we dismiss the appeal because the Judge’s order was right in the circumstances in which it was made, we do not believe there is any absolute reason why none of these recordings should be admissible in evidence. It is not implausible – we can put it no higher – that parts of this 39 hours of material will in fact be potentially relevant and ought to be admitted in the interests of justice. The question arises whether if the Claimant were now to make a fresh application to the Employment Tribunal, producing the transcripts and the tapes of the material on which she wishes to rely, and accompanying them with a clear explanation of why they are said to be relevant, she might get a different result. It is in our view highly unlikely that on such an application the Employment Judge would rule all 39 hours’ worth of material relevant or admissible, but it might be another matter if the Claimant made a focused and selective application asking for permission only in relation to a much more limited quantity of material.
The recording of disciplinary and other meetings is becoming far more commonplace, particularly since high quality recording features are included in many smartphones. Employers should be ready to answer a request to allow open recording, and ideally have the point covered within relevant policies and procedures. Further, for the reasons set out in this decision, employers should not assume that covert recordings will not be allowed in evidence. It is also worth bearing in mind whether any recordings should be arranged by the employer and then made available to both employer and employee. My personal view is that such an approach should be avoided whenever possible since it brings with it a tendency to micro-analyse proceedings and therefore the possibility of attaching significance to often trivial points which might not otherwise have arisen in the first place.
