Can covert recordings be used as tribunal evidence?

13 Mar 2018 By Charles Wynn-Evans

Charles Wynn-Evans examines a recent EAT decision on the admissibility of recordings made at a disciplinary panel meeting

In Fleming v East of England Ambulance Service NHS Trust, the Employment Appeal Tribunal (EAT) considered whether an employment tribunal (ET) had been correct not to allow a claimant to rely, in his subsequent claims for unfair dismissal and disability discrimination, on recordings he had made of the discussions during breaks in a disciplinary meeting of the internal panel considering ‎disciplinary charges against him.

The claimant had recorded the disciplinary meeting in question – which had been a difficult and stressful meeting – without informing anyone and left his mobile telephone in the meeting room during breaks, thereby recording the panel’s private discussions. The claimant argued that this was inadvertent but, as the EAT put it, the employer was “understandably rather sceptical about that”. The ET decided that the recordings – which were of discussions between the panel that in part referred to the employer's legal advice as well as a telephone call with the employer's legal adviser – should not be admissible at the hearing of the claims on the basis that they were “private/legally privileged”.

Before the EAT, the employer argued that what was said in the breaks in the disciplinary hearing was covered by ‘legal professional privilege’ – confidential communications between lawyer and client for the purpose of giving or obtaining legal advice. Legal professional privilege is an absolute bar to admissibility in proceedings, but not if the purpose of seeking or giving advice is to effect ‘iniquity’ – in effect, ‘sharp practice’ abusing the proper purpose of legal professional privilege that is to protect the genuine giving and receiving of advice.

On the facts of the case, there was no iniquity and therefore the EAT held that, on the basis of legal professional privilege, the claimant should not be allowed to make use at the ET hearing of his recordings to the extent that they included references to solicitors' advice and a telephone call between the employer's officers and its solicitor.

The issue with regard to the remainder of the recordings was whether such private deliberations of an internal panel should not be admissible in the ET proceedings on public policy grounds‎. Case law had established several principles on this issue. The fact that a recording is not covert is not of itself a ground not to admit it. However, there is an important public policy in preserving confidentiality so not to inhibit full and open discussion and to avoid undermining the proceedings' eventual outcome. A balance needs to be struck by reference to the circumstances of the case and this may involve considering the nature of the deliberations and the value of the evidence. While there are no hard and fast rules, evidence is more likely to be admitted in a discrimination case where no reasons are given by the panel and the only evidence of discrimination is from a recording of the panel’s deliberations or a panel member, or where the deliberations show the panel is acting under instructions from management.

The EAT considered that there was a strong public policy in preserving the confidentiality of the discussions upon which the claimant sought to rely on in this case – even though they were not stated in advance to be private deliberations, they related to the panel's decision. It also found that the evidence did not produce incontrovertible evidence of discrimination as the discussions related to the claimant's conduct during the hearing and did reflect some sympathy for him as opposed to some animus against him.

However, the claimant had listened to the recordings and let the employer know his views on them before the employer took the decision to dismiss him – he became very upset and refused to participate further in the employer’s process.‎ In those circumstances, which the ET noted were unusual, it was considered that the material should be admissible in the ET proceedings to the extent that the material was not subject to legal professional privilege; the employer's decision to dismiss could not properly be assessed without reference to the events following the disciplinary meetings and the position the claimant took once he had heard the recordings.

The decision is a reminder for employers of the legal principle that the fact a recording is covert does not mean the ET will automatically refuse to allow it to be relied upon. Also, while it may be an obvious practical point, the risk of having this sort of dispute can be avoided if private panel discussions take place away from the meeting room in which a participant may have left a mobile telephone in voice recording mode.

Charles Wynn-Evans is a partner at Dechert 

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