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Covert recordings are admissible
In a case which will cause some consternation for employers, the EAT has declared that covert recordings made by employees without the knowledge of the employer are admissible in evidence in tribunal claims. In Vaughan v London Borough of Lewisham and others, the EAT has overturned an Employment Judge’s decision to refuse the application of a Claimant to submit in evidence 39 hours of covert recordings which she had made using a dictaphone, of discussions between herself and her managers and colleagues. She claimed that these would show that the Respondent’s notes were inaccurate or wrong.
Overturning this decision on appeal the EAT confirmed that while the practice of covert regarding was, in its words, “very distasteful” the recordings were not inadmissible simply because the way in which they were taken may be regarded as duplicitous.
Interestingly, the EAT considered that the Employment Judge was correct to refuse the application based on the evidence produced by the Claimant because it was not possible for the Judge to form any view of the relevance and therefore admissibility of the text. However it was not particularly happy with the reasoning in the judgment and went on to make recommendations of how covert recordings should be dealt with. The EAT advised the Claimant that, if she had lodged a more focused application supported by transcripts of the recordings on which she sought to rely, and an explanation as to their relevance, she might get a different result.
On the basis of this decision, employers who come across employees who have secretly recorded meetings etc will need to be advised that these are likely to be admissible, especially if the employee lodges the appropriately drafted application.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.
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