Evidence admissible in Employment Tribunal Hearings

The following article specifically considers whether it is possible to include evidence that an employee has obtained by carrying out a secret recording of an internal meeting with their ex employer. Â

The current position as established by case law is that  a recording of a meeting where all concerned parties are present may be admissible if relevance can be demonstrated, however due to grounds of public policy any recordings of the employers panel will not be admissible.

Case law

Chairman and Governors of Amwell View School v Dogherty UKEAT/024306

The leading authority is the above case in which the EAT held that an employee’s secret recording of her disciplinary hearing could be used in evidence before the Tribunal, however the part of the recording relating to the private deliberations of the disciplinary panel were excluded on grounds of public policy. The EAT further commented that had the case been in relation to a discrimination claim, the deliberations of panel may (dependant on specific facts) possibly have been admissible.

Williamson v Chief Constable of the Greater Manchester Police and another UKEAT/0346/09

This case involved disability discrimination, the employee attempted to adduce evidence of a secret recording of his employers panel at a capability hearing, the evidence was not allowed to be used as the recording was made while the employee was out of the room and the Tribunal considered there was nothing in the recording that had direct relevance to his discrimination claim.

Vaughan v London Borough of Lewisham and others UKEAT0534

In this case the Tribunal upheld a decision refusing an employee’s request to allow up to 39 hours of secret recordings of meetings with her employer and colleagues, the reasons for the refusal were as follow:

  • The employee had not previously disclosed the recordings or transcripts of the same to her ex employer.
  • The employee was only willing to explain the relevance of the recordings in general terms.

The EAT clarified in this case that had the relevance of the recordings been succinctly explained and had transcripts been provided the evidence may have been admissible.

The above case also established:

  1. Should an employee wish to rely on covert recordings at a hearing, they should disclose both the transcripts and the recordings to the employer at an early stage in the proceedings.
  2. If the employer subsequently wishes to object to the use of the evidence, the employee can then make an application to the Tribunal explaining the specific relevance of the evidence in relation to the issues to be determined by the Tribunal.
  3. The employee must then provide the Tribunal with a copy of the transcript well in advance of the hearing in order for the Tribunal to make a decision regarding relevance and admissibility.

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