Withers Worldwide

The influence of the spy thriller is such that it is not unusual for either employees or employers to try to record evidence covertly. They hope to trap the other side into unguarded admissions that will help their case. Such ploys are often fraught with difficulties. The equipment may be difficult to hide and tricky to use in the hands of the inexperienced James Bond.

Are covert recordings accepted in evidence by the courts? In general, employment tribunals seek to avoid formality and have a wide discretion to decide what is admissible in evidence.  However, evidence may be excluded if it:

• has been disclosed late in the proceedings (particularly if such disclosure is in breach of any case management orders);
• would, if admitted, be in breach of the Human Rights Act 1998; or
• should be excluded as a matter of public policy.

The Employment Appeal Tribunal held recently that an employee who secretly recorded her own disciplinary hearing could use the recording of the hearing in her tribunal case, even though the individuals hearing the case did not know they were being recorded at the time. However, the recording that the employee had managed to make of the subsequent private deliberations of her employer (from which the employee had been excluded) were not admissible on grounds of public policy (Chairman and Governors of Amwell View School v Dogherty). The Tribunal made it clear, however, that in certain circumstances even those private deliberations might be admissible, if for example, they provided the only available proof of discrimination. 

Action list

Employers should:

• amend their procedures to make it clear that covert recording is prohibited;
• revise internet policies to make it clear that clandestine downloading of documents by unauthorised users and/or for purposes other than the intended purpose is also prohibited; and
• meetings in private to deliberate findings should be minuted carefully with an eye to the fact that they are disclosable in future litigation, particularly if that litigation involves allegations of discrimination.