The Employment Appeal Tribunal has ruled on an employment judge’s decision to exclude evidence in the shape of 39 hours’ worth of unauthorised recordings. The claimant had secretly recorded “dozens” of conversations with work colleagues using a dictaphone, and wanted to use them to support her discrimination claim.
The employment judge’s decision to refuse to admit the recordings was upheld, but at least partly due to the way the claimant had approached the application. This is the second EAT decision in recent years to point out that recordings are not inadmissible merely because they have been obtained in a clandestine manner. However an application for this type of evidence to be admitted needs to be particularly clear about why it is relevant to the issues in dispute.
In this case the employee had brought a total of nine claims against the local authority employer. Three had been dismissed after taking up 20 days of judicial time. This application related to a second group of claims that had already been listed for a further 28 day hearing. Despite the length and complexity of the proceedings, the EAT considered it doubtful that all 39 hours of recordings would be relevant. In effect it invited the claimant to submit a new, more focused, application, accompanied by the relevant recordings and transcripts, which could be prepared by the claimant, at least initially. She would also need to explain why she thought the evidence they revealed was relevant.
This decision has potentially wide-reaching implications for employers, particularly since new technology makes it so much easier to store and duplicate sound recordings. There was no evidence in this case that the recordings had been made in breach of the criminal law, or had engaged the right to privacy under article 8 European Human Rights Convention. Had this been the case, the claimant may well not have been invited to make a second application.