Labour & European Law Review Weekly Issue 321 30 May 2013
When making a complaint to a tribunal, it stands to reason that claimants need to submit as much evidence as possible. In Vaughan v London Borough of Lewisham and ors, the Employment Appeal Tribunal (EAT) said although covert recordings were “distasteful” they could still be accepted as evidence as long as the claimant could show their relevance to the case.
Ms Vaughan, a Council employee following a TUPE transfer, brought nine claims against the Council, her predecessor employer and various employees, which she said had occurred both during her employment and after it had ended.
After three of her claims were dismissed, the tribunal considered at a pre-hearing review whether she should be allowed to rely on 39 hours of covert recordings she had made of conversations between herself and her managers or colleagues to support her other claims of discrimination, harassment, victimisation, unfair dismissal and whistleblowing.
She argued that they proved her claim that the Council and members of staff had lied but refused to supply any of the transcripts ahead of disclosure. She was concerned that, if the Council knew which recordings she was going to rely on, her case would be prejudiced and she would be put at a disadvantage.
The employment judge refused the application for three reasons:
- Ms Vaughan would only agree to the recordings being independently transcribed subject to certain conditions which were unacceptable to the tribunal as it was concerned that “given the clandestine nature of the recordings” there was a risk that they had been tampered with or had been rendered unreliable in technical terms.
- Ms Vaughan refused to provide specific reasons about the relevance of the recordings to her claim and so the judge could not be clear how useful they were in terms of evidence.
- Given the extent of the recordings, the inevitable time and cost involved in considering them by the Council and the tribunal would be disproportionate.
The EAT agreed that it was not possible to decide whether the tapes were relevant (and therefore admissible as evidence) without first hearing them or reading the transcripts. It was not enough for Ms Vaughan to argue that they should be admitted because they were relevant as “relevance is not a black-and-white concept”. The judge therefore had no option but to refuse the application.
However, it was critical of the reasons that the judge relied on for coming to her decision. Firstly, there was no need for the transcript as a precondition of admissability as that would have cost Ms Vaughan a lot of of money. She could just have provided her own transcripts to the Council, along with the tapes. Secondly, there was no way of knowing at this stage (as they had not been produced) whether all the recordings would need to be considered.
Although the practice of making secret recordings was “very distasteful”, the EAT said that it was clear from case law that covert recordings could not be refused in evidence simply because the way in which they were taken might be felt to be “discreditable”.
In this case, there was no reason to assume that the recordings could not be admitted in evidence. Some of them could well be relevant and perhaps ought to be admitted in the interests of justice. If Ms Vaughan therefore made a more focused application to the tribunal, producing the transcripts and the tapes on which she wanted to rely, along with an explanation as to why they were relevant, it said “she might get a different result”.
Although the EAT indicated that a tribunal might consider a fresh application for parts of the recordings to be admitted (even though the time had passed to submit it), it still advised that the Council should see the material at as early a stage as possible so that it could consider what course to take.