The claimant in Vaughan v London Borough of Lewisham had made nearly 40 hours of secret dictaphone recordings of discussions between herself and her managers and colleagues.  She wanted to use them in support of her discrimination claim, to show that the contemporaneous notes of disciplinary hearings and other meetings made by her employers were inaccurate, or even deliberately falsified.  The Employment Tribunal Judge refused the application.  However, on appeal, the EAT, noting that the practice of making covert recordings is "very distasteful", confirmed that this does not make them inadmissible.

Tribunals have a wide discretion over the admissibility of evidence; it will be generally be a question of relevance, unless there would be specific human rights or public policy breaches.  In this case, the EAT in fact concluded that the Judge was right to refuse the application because it was not possible, without more information, to form a view on the relevance of the recordings.  However, the EAT also commented that if the claimant lodged a new application, supported by transcripts of her recordings, and an explanation of why they were relevant, she might well be successful.  The employers' claims – that the employee had on several occasions denied making the recordings, and that they would rely on her conduct as evidence of a breakdown of trust and confidence, would not be relevant at this stage.

The ability to record discussions is clearly becoming easier; it may be worth employers making it clear in their policies that covert recording in the workplace is not acceptable.  Although they will not necessarily be able to rely on this to prevent evidence being used in a tribunal, it should make it easier to address a breach as a conduct issue.