The admissibility in Tribunal cases of clandestine recordings can give rise to problems in the employment field. In a 2007 case the Employment Appeal Tribunal concluded that it is not an infringement of human rights to allow such recordings of internal disciplinary and appeal hearings but that there is a public interest in the parties to disciplinary hearings complying with the agreed ‘ground rules, such as respecting the privacy of private deliberations.
The case, Amwell View School v Dogherty, concerned D, who was employed as a teaching assistant at the school (AVS). After the operation of a disciplinary procedure and an appeal D was dismissed for misconduct. However, D had secretly recorded the disciplinary and appeal hearings, including the private deliberations of the school governors on the respective disciplinary and appeal panels. In a claim against AVS for unfair dismissal, D tried to use the recordings as evidence. AVS objected, both because of the late stage at which the evidence was disclosed, and because of the clandestine nature of the recordings. The employment tribunal adjourned the hearing and ordered D to pay wasted costs, but did not rule the recordings as inadmissible, instead ordering D to disclose the recordings to AVS so it could ascertain whether they were genuine.
After having an application for review refused, AVS appealed to the EAT. It submitted that there were several grounds on which the evidence should have been excluded including human rights; illegality; and public policy.
The EAT unanimously held that, in allowing the secretly-recorded evidence to be used, the tribunal had not breached the governors’ right to respect for private and family life under Article 8 of the European Convention on Human Rights. This was because, when volunteering, the governors had put themselves and the work they did at the school into the public domain. On the ground of illegality no criminal offence or breach of contract could be identified to support the contention that the recordings should be excluded due to illegality.
Moving on to the public policy arguments, the EAT first rejected the suggestion that the evidence should be excluded due to the doctrine of judicial privilege, since this only applies to those exercising a judicial or quasi-judicial function, and in any event would only prevent the individual governors being sued. However, it did decide that the recordings of the governors’ private deliberations should be excluded on the ground of public policy. The reasoning relied upon was the importance of all parties obeying ‘ground rules’ in disciplinary and appeal proceedings – to fail to maintain the respect for the privacy of private deliberations would have the effect of inhibiting the discussions of those tasked with deliberating, and could give rise to ‘satellite’ litigation based on leaked parts of the deliberations.
The same principles would probably apply to Grievance hearings and appeals from the outcomes thereof.
Many disciplinary hearings are not recorded either officially or unofficially, not least because the nature of such hearings is that the recordings are often very confused and difficult to transcribe and an inordinate amount of time can be wasted in producing transcriptions when more conventional minutes will suffice. Also, minutes may well better reflect the meeting as, for example, when well-written they convey the behaviour of a witness as well as the words used. It is sometimes useful to have a recording as a fall back in case minutes are in dispute.
However, there can be no certainty that clandestine recordings will be automatically allowed as evidence because the case cited above is very case specific. An employer would be unlikely to be able to rely on its own clandestine recordings of such meetings because they might well be deemed an invasion of privacy. Even so, employees would do well to ask before a meeting for confirmation that the employer is not recording.
