Some more sensible guidance this week from the people who brought you Heafield –v- The Times, this time in connection with the use of covert tape recordings in evidence in the Employment Tribunal.
Ms Vaughan alleged discrimination against London Borough of Lewisham and assorted others. She claimed that she had 39 hours of covertly tape-recorded conversations with colleagues and managers over a ten month period which showed that the Respondents were lying in representations made in their pleadings and other documents. Thirty-nine hours? That is the equivalent of nearly 8 full Tribunal days. On top of the 20 which her claims had already taken, the Tribunal could face no more and even without hearing them or knowing in detail what they said, refused Ms Vaughan consent to put the tapes into evidence.
The Employment Appeal Tribunal had to consider whether that was the right decision. It gave some very clear pointers to parties making and opposing such applications. First, even though the EAT accepted that an employee’s making covert recordings was “to put it no higher, very distasteful” that did not make those recordings inadmissible in evidence. The same was true of Ms Vaughan’s repeated denial, when asked by her colleagues, that she was doing so. These were matters going to her credibility, but they did not make the tapes automatically inadmissible. Even the underhand and periodically dishonest have the right not to be discriminated against.
However, there are limits. It could not possibly take 39 hours to show whether the Respondents were lying in relation to a small number of key points. As the EAT put it with masterful restraint, “We suspect …. that most of this material when produced will not be of such a character that it is necessary to review it carefully for its accuracy”, and “It is not implausible – we can put it no higher – that parts of this material will in fact be potentially relevant”. This is judicial shorthand for “Vast tracts of this, perhaps all of it, will be irrelevant tosh”. The English language is indeed a thing of beauty in such hands.
But if the tapes were even potentially relevant, why were they not admitted? Where Ms Vaughan went wrong, concluded the EAT (doing its very best to guide the Tribunal and Ms V without appearing to do so), was in not narrowing her application down. She should have limited it to specific sections of the tapes only, provided a transcript of those sections and a reasonable explanation of how they showed that the representations made by the Respondent were false. Faced with concise and compelling evidence that the Respondent was lying, however distastefully that evidence was obtained, the EAT thought that the Tribunal could well have come to a different decision. However, since Ms V had not taken those steps, the Employment Tribunal was entitled to conclude that she had not proven that the tapes necessarily added anything relevant or material, and therefore to reject them.
So for Respondents – if the Claimant says there is a tape, press for it plus a transcript at the earliest opportunity, even before proceedings are started. If you have a challenge to its authenticity, make it early so that any necessary expert evidence can be arranged. But don’t assume that because it was recorded without your knowledge, that evidence will be inadmissible.
For those Claimants who choose the terminal loss of credibility and Chris Huhne-like re-employment prospects which go with making covert recordings of your colleagues, prepare a transcript of the sections which are most relevant plus a note of why, and get them and the tape to the Respondent as soon as possible. If there is an argument about admissibility, give the Tribunal the same material – especially in discrimination cases, it will be reluctant to exclude material if even potential relevance can be shown, but it will always be up to you to demonstrate that to be the case.