Covert Recordings as Evidence in the Employment Tribunal
In today’s technologically advanced society, covert recordings have become increasingly prevalent, raising questions about their admissibility as evidence in legal proceedings. This article aims to explore the admissibility of covert recordings in the context of employment tribunals in England and Wales.
Covert Recordings and Their Legal Implications
Covert recording is the secret recording of conversations or interactions without the knowledge or consent of all parties involved. In the employment context, an individual may choose to record conversations or meetings with the intention of gathering evidence to support their claims or to provide a factual account of events.
The use of such recordings as evidence in the employment tribunal has been a controversial issue due to the potential invasion of privacy and confidentiality concerns.
While covert recordings may seem to offer a clear picture of the events, their admissibility as evidence can be subject to legal scrutiny. The Employment Tribunal must carefully assess the relevance, reliability, and fairness of such recordings when determining their admissibility.
Relevant Legislation and Legal Principles
There is no specific legal provision that explicitly addresses covert recordings.
Therefore, employment tribunals rely on common law principles, procedural rules, and guidance from case law to determine the admissibility of covert recordings.
Admissibility Factors and Considerations
In general, the admissibility of evidence in the employment tribunal is determined by the Employment Tribunal Rules of Procedure. Rule 27 provides that the tribunal may admit any evidence that it considers relevant to the case, regardless of whether the evidence would be admissible in a court of law. This broad rule gives the tribunal discretion to admit covert recordings as evidence if they are considered relevant to the case.
However, the use of covert recordings as evidence in the employment tribunal is not without limitations. The General Data Protection Regulation (GDPR) and the Data Protection Act 2018 (DPA) provide individuals with the right to privacy and control over their personal data. Covert recordings may be considered a violation of these rights and may therefore be inadmissible if they are obtained in breach of the GDPR and DPA.
In addition, the tribunal will consider the circumstances surrounding the recording, including the reason for making the recording, the method of recording, and the content of the recording. If the recording was made for malicious or improper purposes, such as blackmail or harassment, it is unlikely to be admissible as evidence. Similarly, if the recording was obtained through illegal means, such as hacking into a computer or using a hidden camera, it will not be admissible.
The content of the recording will also be a crucial factor in determining its admissibility. If the recording contains confidential or sensitive information, such as trade secrets or personal information, it may be inadmissible if its disclosure would cause harm to the other party or parties involved. The tribunal may also consider the potential impact of the recording on the relationship between the parties and the impact on their reputation.
The tribunal will assess whether the content of the covert recording is relevant to the issues raised in the case. The recording must have a direct bearing on the claims made and provide material evidence. Additionally, the tribunal will consider whether the recording is proportionate to the issues at hand or if its admission would unduly lengthen the proceedings.
Furthermore, the tribunal will consider the reliability and accuracy of the recording. Covert recordings are often of poor quality and may not accurately reflect the conversation or situation. The tribunal will need to assess whether the recording is a true and accurate representation of what was said and whether it has been edited or manipulated in any way.
Ultimately employment tribunals must balance the right to a fair trial with the public interest. This includes considering whether admitting covert recordings would undermine the trust and confidence in the employment tribunal system or breach the privacy rights of the parties involved.
Precedents and Case Law
Case law provides some guidance on the admissibility of covert recordings.
In the case of Punjab National Bank (International) Limited and others v Gosain , the Employment Appeal Tribunal held that a covert recording made by an employee during a meeting with HR representatives was admissible as evidence. The tribunal emphasised that the recording was relevant, reliable, and fair, and its admission did not undermine the integrity of the proceedings.
However, each case is unique, and the admissibility of covert recordings depends on the specific facts and circumstances. It is crucial for parties to seek legal advice and be aware of the potential implications and limitations of using covert recordings as evidence.
In the case of Fleming v East of England Ambulance Service NHS Trust 2017, 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 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.)
While covert recordings may be admissible as evidence in the employment tribunal, their use is subject to strict limitations and requirements. The admissibility of such recordings will depend on the circumstances surrounding the recording, the content of the recording, and the reliability and accuracy of the recording. Parties should be cautious when making covert recordings and seek legal advice before attempting to use them as evidence in the employment tribunal.
For both employers and employees, we recommend that, especially for formal disciplinary or grievance meetings, that you audio record the meeting, with all persons consent so as to have a full and accurate record of what is discussed.
If you opt not to audio record meetings, then as an employer it is important that you state at the beginning of meetings that notes will be taken, and you do not agree to audio recording of the meeting or discussion and that any covert recordings will be dealt with as a separate disciplinary issue.
Finally, we recommend that you include covert recording of colleagues as a disciplinary issue and/or rule in your employee handbook so that everyone is clear on your position and the expectations.
If you would like any advice on covert recordings as evidence or reducing the risk of covert recordings as evidence, please do not hesitate to contact us on 01983 897003.