This article looks at some recent case law on the admissibility in Employment Tribunal proceedings of covert recordings of disciplinary hearings.

As electronic devices capable of recording become increasingly widely and cheaply available, portable and discreet, it is becoming more common for employees to make covert recordings of meetings and hearings held by employers, including disciplinary hearings. Employment Tribunals ("ETs") have had to grapple in recent years with arguments about whether and in what circumstances such recordings, or transcripts of them, are admissible in subsequent tribunal hearings.

The starting point is that ETs are "not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts"[1]. This affords them a wide discretion in relation to admissibility and exclusion of evidence. It is settled law, however, that they will not disregard well-established principles of law regarding the admissibility of evidence. It has been held[2] that, despite the absence of any express power, ETs have the same powers as a civil court[3] in terms of the exclusion of evidence that would otherwise be relevant and admissible.

How is this discretion exercised in practice? ETs generally take as a starting point that evidence which is relevant is admissible. Clearly there are degrees of relevance and that will be taken into account when considering applications to admit or exclude evidence. However, even where evidence is clearly relevant and therefore potentially admissible, ETs retain a discretion to exclude it. This discretion may be exercised for a number of reasons.

Instinctively, some might feel that a recording which has been made surreptitiously, without the knowledge or consent of those being recorded, ought not to be admissible evidence. Certainly it is the experience of this writer that ETs tribunals will often express considerable distaste and disapproval at  such recordings being made, and it is sometimes viewed as behaviour by a claimant which discloses, or warrants a finding of, a fundamental breakdown in trust and confidence between the parties. However, the wide admissibility of relevant evidence, and the fact that a recording will often obtain relevant material, means that recordings are usually treated as admissible unless there is a legal basis to exclude them.

The reason most frequently relied upon by parties seeking to exclude covert recordings is that of public interest, or public policy, in preserving the integrity and confidentiality of employers' private deliberations in grievance or disciplinary hearings. However, ETs have to weigh this against the competing public policy interest of all relevant evidence being admitted in the interests of justice (and, of course, in the interests of the Claimant). It is a question of performing this balancing exercise on a case-by-case basis, and it has been held that no "new broad class of common law public interest immunity" has been created by recent authorities[4].

The tension between these competing interests has led to some distinctions being drawn. The first of these is a distinction between a recording of the "public" parts of a disciplinary hearing - in other words, the parts during which the employee and any representative are present, evidence and submissions are heard and so forth - and the "private" parts - in other words, the deliberations of managers and panel members and their private discussions with HR advisers, lawyers and so forth. As far as the former is concerned, it has been held in admitting such evidence that it was always intended that there would be a record of these discussions in the form of written minutes, and the transcript obtained from the recording could be likened to a record taken by a shorthand writer engaged by the claimant, which would be admissible[5]. However, in relation to private deliberations in the same case, the EAT held that failure to preserve the privacy of those deliberations would inhibit free and open discussion by those adjudicating upon the case, and would create potential satellite litigation based on "leaks" or clandestine recordings. The EAT observed that the disciplinary proceedings were based on "ground rules" and that "no ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body... than the understanding that their deliberations would be conducted in private and remain private".

However, this distinction has itself been qualified by a further distinction. In the case discussed above, the EAT noted that its decision as to where the balance fell between the competing public interests might have been different "if the claim had been framed in terms of unlawful discrimination, where the decision was taken by a panel which gave no reasons for its decision, and where inadvertent recording of private deliberations (or the clear account of one of the panel members participating in those deliberations) had produced the only evidence - and incontrovertible evidence - of such discrimination". This further distinction reflects the particular problem, often discussed in employment law, of the difficulty claimants have in proving discrimination.

This hypothetical scenario became more of a reality in a recent case[6]. The claimant, who alleged sex discrimination, sexual harassment and constructive dismissal, had recorded, covertly, both the public and private parts of grievance and disciplinary hearings. She alleged that the recordings contained evidence that (i) during a break in the grievance hearing, a comment was made that the Managing Director had given an instruction to dismiss her; (ii) the manager hearing the grievance said that he was deliberately skipping the key issues raised in her grievance letter; and (iii) the manager hearing the disciplinary matter made a derogatory and sexually offensive remark about a relationship between her and another employee. It was held that these comments fell well outside the areas for legitimate consideration at the hearings, did not constitute the type of private deliberations which the parties would understand would take place in relation to the matters at issue in the hearings, and fell outside the "ground rules" referred to in the earlier case of Amwell. Given the nature of what was said, the ET Judge at first instance also saw no public policy reasons why these particular comments, even though made in private, should be protected. The EAT upheld the decision to admit the evidence as being a permissible exercise of the ET's discretion.

In the previous case, the entire recording was ruled admissible. However, in a further recent case[7], it was ruled by an ET judge that a claimant could not adduce 39 hours' worth of covert recordings of dozens of meetings held between her and various colleagues and managers over the course of a year. She had refused to supply copies or transcripts of the recordings before the application was considered, simply saying that the recordings all related to matters relied upon in her pleadings and referring to generalities rather than the detail of what was recorded. The EAT agreed that it was impossible for the tribunal to evaluate the relevance and therefore the admissibility of the recordings without sight of the transcripts. Assessment of relevance involves questions of degree and proportionality. Whilst the EAT did not consider that the transcript needed to be independently produced by a third party, it did consider that an application might be more favourably received if the claimant made it "producing the transcripts and the tapes of the material on which she wishes to rely, and accompanying them with a clear explanation of why they are said to be relevant". It was also noted that it was unlikely that all the material would be ruled relevant or admissible, "but it might be another matter if the Claimant made a focused and selective application asking for permission only in relation to a much more limited quantity of material".

It is perhaps helpful to draw these authorities into some practical advice.

Claimants should bear in mind that ETs continue to be critical of parties who make clandestine recordings of meetings or hearings: if it is possible, it will generally be better to seek the employer's consent before recording a meeting. It seems likely that any recordings of the "private" parts of any meeting or hearing - the deliberations which take place in the employee's absence - will normally be inadmissible, for public policy reasons, unless they disclose evidence of a departure from legitimate deliberations and positive evidence of discrimination. It will be apparent from the recent authorities, however, that covert recordings may be admissible in tribunal proceedings, and if they are to be relied upon, it is important to prepare a full transcript and make both that and the recording itself available to the respondent and to the tribunal before the application to adduce the evidence is made.

Respondents should be alive to the possibility that covert recordings will be admitted in subsequent proceedings. It may be sensible to set out expectations within disciplinary and grievance policies: for example stipulating that recordings may only be made with consent and are limited to the open parts of the hearing, and that any clandestine recording will be viewed as a breach of trust and a serious disciplinary matter which could result in dismissal. Employers should always ensure that discussions and deliberations in private at any hearing are professional and focussed on the relevant issues. In a company with HR support available, it will no doubt be easier for any inappropriate comments or considerations to be challenged. However, in the light of recent case law, it would be advisable for managers involved in hearings not to make any comment that they would not be prepared to explain and justify in subsequent tribunal proceedings if it was recorded without their knowledge.