Covert recordings: admissible evidence

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Covert recordings may be admissible evidence in an Employment tribunal, if the Claimant’s application is appropriate, with supporting evidence.

Can employee rely on 39 hours of recordings

An employee brought various claims against her employer. She wished to rely on 39 hours’ worth of recordings which she covertly obtained. The Employment Judge, during a pre-hearing review, refused the Claimant’s application to adduce such evidence at the full hearing.

Firstly, the Judge felt that the credibility of the evidence may be affected by the risk of tampering. So the recordings would have to be independently transcribed. The Claimant was not willing to do this without certain conditions which the Judge found to be unacceptable.

Secondly, the Judge was of the opinion that without specific responses from the Claimant on what the content of the recordings was she could not determine whether the evidence was relevant.

Thirdly, the Judge considered that the time and cost of reviewing the 39 hours’ worth of recordings was disproportionate. The Claimant appealed against the decision.

The decision of the EAT

The EAT dismissed the appeal on the basis that the Judge had the right to refuse the application on the material she had in front of her;  however, the EAT did not agree with the entirety of the Judge’s reasoning.

The decision was correct for the reason that the Judge could not determine whether the evidence was relevant or proportionate and thus admissible without seeing the transcripts of the recordings. The EAT did not agree with the Judge that a precondition of admissibility was to have the recordings independently transcribed in their entirety but rather that only if the Respondents wished to check the accuracy of the recordings would an independent expert need to be considered.

The EAT held that “if the Claimant made a focused and selective application asking for permission only in relation to a much more limited quantity of material” and “producing the transcripts and the tapes of the material on which she wishes to rely…she might get a different result” (paragraph 26).

Interestingly, the nature of the evidence, i.e. the fact that the evidence consisted of covert recordings, had no bearing on the decision of whether it was admissible. The Judge in the EAT stated “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…

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” (Paragraph 12).

This case re-affirms that employers need to be aware that covert recordings may be admissible as evidence by an employee in an Employment Tribunal. Employers may however, depending on the circumstances, wish to refer to the conduct of employees in making the recordings as evidence of breach of trust and confidence and as relevant to the issue of credibility.

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