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Can covert recordings be used as evidence?

Evidence in the Employment Tribunal

With the prevalence of mobile phones and the audio capabilities that they have, as an employer you may wonder whether a covert recording of a meeting, made by an employee, could potentially be used against you as evidence in an Employment Tribunal.

The answer is not always simple, however past cases give us a clue as to whether a Tribunal will accept a secret recording as admissible evidence.

In the 2013 case of Vaughn v London Borough of Lewisham the employee attempted to rely on 39 hours of covert Dictaphone recordings as evidence that her employer had deliberately provided inaccurate and falsified evidence.

Unfortunately, Mrs Vaughn did not supply copies of the tapes or transcripts to the Tribunal and the Judge therefore refused her application to use as evidence and she subsequently appealed.

The Employment Appeal Tribunal upheld the original decision to refuse the tapes to be used as evidence. The reason for this though was not that they had been covertly recorded, but that the Tribunal had not been given enough information about the relevance of the recordings and Mrs Vaughn had also refused to answer questions about why she believed the recordings were relevant.

Although relatively old the judgement in this case highlighted that although it is ‘very distasteful’ a covert recording is not considered inadmissible evidence. However, cases are always subjective and will be judged on their individual facts.

A more recent case of Fleming v East of England Ambulance Service NHS Trust 2017 highlights however that Employment Tribunal decisions are made on a case by case basis. In this case Mr Fleming attempted to use recordings made of discussions, which took place during breaks in a disciplinary meeting, between the panel considering his disciplinary charges against him. The recordings were made using Mr Flemings mobile phone while he was not present but had left his mobile phone in the room recording.

In this particular case the Tribunal decided that the conversations should be not admissible on the basis that they were ‘private and legally privileged’ (The conversations referred to legal advice that the panel had received.)

Points to Note

As an employer it is sensible to be aware that covert recordings of disciplinary meetings could be used by an employee in a Tribunal claim. Therefore, be aware that there is a possibility that an employee is using a mobile phone or similar device to record a meeting.

As always, our advice is to ensure that the correct procedures are followed at all times. Therefore, ensuring that any covert recording made would not be damaging evidence – apply the principle that anything you say could be used in evidence.

It is also an option to expressly prohibit the recording of any meeting. This could potentially persuade a tribunal not to allow a recording to be used as evidence.

Alternatively, we recommend that you provide your own audio recording equipment and ask the employee and those present if they agree to the recording being made and shared (confidentially) between the parties. This serves two purposes, 1) it is a full record of what is said at the meeting, therefore cutting down any dispute about meeting minutes and the content of the discussions and 2) if the employee refuses and then subsequently covertly records the meeting anyway it gives good grounds, in our opinion, for asking the Tribunal to refuse to allow the evidence.

This article was written and researched by Abigail Stiles, Business Administration Apprentice

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

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