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Covert recordings admissible as evidence

BY Margaret Anne Soderqvist-Clark
Employment Law & HR
BG Purple

A recent EAT decision has helped dispel the myth that covert recordings cannot be used in evidence in employment tribunals. 

In Vaughan v London Borough of Lewisham the claimant sought to rely in evidence on 39 hours' worth of recordings that she had made covertly on her Dictaphone.  The recordings were of a number of interactions between herself and her managers or colleagues. The claimant claimed that the recordings confirmed her accounts of the meetings and also showed that the accounts made by the respondent were inaccurate or deliberately falsified. In making an application to submit the recordings as evidence, the claimant gave only brief reasons as to why the admission of the recordings was important and did not supply copies of the tapes or transcripts. The employment judge refused her application.

The claimant appealed and the EAT, whilst not entirely sure about the judge's reasoning, upheld the decision to refuse her application. This was because she had not provided enough information for the judge to form any view on the relevance, and therefore the admissibility, of the recordings. The claimant had not provided transcripts of the tapes and was not willing to answer detailed questions about why she thought the tapes were relevant. Therefore, in the circumstances, the judge had no alternative but to refuse the application.

Importantly, the EAT made it clear that this did not mean that covert recordings could not be admissible. In fact, the judge said that whilst secret recordings might be "very distasteful", they are not inadmissible simply because the way in which they were taken may be regarded as discreditable. It was open to the claimant to make a more focused application, properly supported by transcripts of the material sought to be relied on.

Given that most mobile phones now have the ability to record, employers should be alert to the possibility that an employee might record a meeting.  Our advice would be that employers should ensure good practice and appropriate procedures are followed at all times during meetings to ensure that any covert recording made would not be damaging evidence.   

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