In Chairman and Governors of Amwell View School -v- Dogherty, the Employment Appeal Tribunal (EAT) said that although the recordings of the open hearings were made clandestinely, they could be used in evidence.
What were the basic facts?
Mrs Dogherty, a teaching assistant and school meals supervisor, was dismissed in June 2005 for misconduct. She attended three hearings (December 2004, April and June 2005) as part of the disciplinary procedure, all of which were minuted by the school.
Mrs Dogherty also recorded the hearings mechanically, but without the knowledge of any of the panel members. One of the recordings was of the “open hearing” when Mrs Dogherty was present, but another was of the June appeal hearing which included the panel’s deliberations in a “closed hearing”.
These recordings (and transcripts) were disclosed by her representative (Mr Thorogood) prior to her tribunal hearing for unfair dismissal. The school, however, objected to the recordings being used in evidence on two grounds – inadequate prior disclosure and the clandestine nature of the recordings.
What did the tribunal decide?
The tribunal agreed with the school that Mrs Dogherty had not adequately alerted them to the existence of the tapes or the transcripts in the run up to the hearing, but decided that the school’s interests would by protected by ordering Mrs Dogherty to provide the tapes and the transcripts well in advance of a rehearing date.
Although the recordings had been made “clandestinely”, it said that the evidence was important enough to be submitted.
What did the parties argue on appeal?
The school objected to that decision, arguing “that the public interest requires that the private deliberations of those involved as members of disciplinary and appeal panels remain ‘private’. To do otherwise would infringe the rights of the governors under article 8 of the European Convention on Human Rights to respect for their private and family life.”
Mrs Dogherty, on the other hand, argued that her “human right” to a fair hearing under article 6 of the convention would be undermined if the tapes were not admitted.
What did the EAT decide?
The EAT noted that the tribunal was clearly convinced that the material contained in the recordings was directly relevant to Mrs Dogherty’s case, not least because the events at the hearings were hotly disputed by the two sides. There was, therefore, no procedural unfairness in the tribunal’s decision.
It then looked at the school’s objections to the evidence and completely rejected the notion that the governors’ human rights would be violated. The case had no bearing on their family life and could not, therefore, have any impact on it. And as they worked in the public domain as governors, their private life could not be violated.
It agreed with the tribunal that the recordings had been made clandestinely, but as they had not been made illegally and were not made as the result of an “unlawful interception”, there was no reason to exclude them on that basis.
The EAT also rejected the school’s “public interest” argument about the recordings of the “open hearing” parts as Mrs Dogherty would have been entitled to take a verbatim record of this.
However, it accepted their argument about the closed hearing and ruled that she could not use these parts in her evidence in the unfair dismissal claim. It concluded that there was an important public interest that parties should comply with the “ground rules” on which disciplinary and appeal proceedings were based.
“No ground rule could be more essential to ensuring a full and frank exchange of views … than the understanding that their deliberations would be conducted in private and remain private,” it said.
It emphasized that it was not creating a new class of public law interest immunity and that their decision might have been different had the claim been framed in terms of unlawful discrimination, or had the facts been different. Each decision, it said, was a balancing act between different rights and requirements.