Claimants’ Employment Tribunal cases struck out after they secretly recorded other side’s lawyers

An Employment Tribunal has struck out four claimants’ cases and have ordered them to pay a five-figure sum in costs after recording the other side’s lawyers and threatening to disclose the recording.

In the case of Zia and others v Brighton University Hospitals NHS Foundation Trust the Tribunal struck out four claimants’ cases and ordered them to jointly pay £69,484 of the NHS Trust’s costs after the NHS Trust’s chief executive and its lawyers received a covert recording of the NHS Trust receiving legal advice.

Brighton University Hospitals NHS Foundation Trust was defending race discrimination claims brought Mr Zia, Mr Prakash, Mr Kaul, and Mr Swaminathan.

During the Employment Tribunal hearing, the NHS Trust’s chief executive and lawyers each received an anonymous recording of a meeting that the THS trust had had with the claimants before the case was brought, as well as a transcript of this meeting. The audio recording covered the last part of a without prejudice meeting that the NHS trust had had with the claimants in order to try and settle the potential case, followed by a legally-privileged meeting between the NHS trust and its lawyers. The recording recorded the content of the legally-privileged advice given to the NHS trust by its lawyers.

Upon receiving a copy of the recording the NHS Trust applied to strike out the claimants’ cases, alleging it was the claimants that had sent the recording and that they were attempting to place pressure on the NHS Trust to settle the case.

The Employment Tribunal struck out all four of the claimants’ cases, holding that they were all equally responsible for leaving the recording device in the room before leaving the meeting, and that they had sent the recording to the NHS Trust in order to “place pressure on the NHS Trust to settle the case”. The Tribunal found that the claimants’  behaviour was “at the very least unreasonable” and that it was proportionate to strike out the cases.

The Employment Tribunal also awarded the NHS Trust its costs in the case, ordering each claimant to pay the NHS Trust £17,371 in costs. The Tribunal also made the claimants jointly liable for the total costs of £69,484.

Chris Hadrill, a partner in the employment department at Redmans, commented on the case: “It is very unusual in Employment Tribunal cases – indeed, in any litigation – for legally-privileged material to be used to place pressure on the other side, and this is certainly a fairly unique case. Although the Employment Tribunal is an ‘informal’ forum, claimants must be careful that they do not engage in unreasonable or vexatious behaviour, else they risk having their claim struck out or being ordered to pay costs.”