Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

In today’s post, we’re going to look at the recent Employment Appeal Tribunal judgment in Vaughan v London Borough of Lewisham and Ors, a case concerning the admissibility in the Employment Tribunal of covert audio recordings. We’ll do so by examining the following:

  1. The facts in Vaughan v London Borough of Lewisham and Ors
  2. The law relating to the admissibility of covert recordings
  3. The Preliminary Hearing judgment
  4. The Employment Appeal Tribunal’s judgment
  5. Further comments

The facts in Vaughan v London Borough of Lewisham and Ors

The Claimant, an employee of the council, brought nine claims against the council, her previous employers and various employees, alleging that she had been a subject of disability discrimination including victimisation and harassment. The main issue in this hearing concerned the admissibility of covert recordings she had made previously of discussions between herself and her employers and employees.

The law relating to the admissibility of covert recordings

The appeal was allowed under rule 3(10) of the Employment Appeal Tribunal Rules 1993, although originally dismissed.

Dogherty v Chairman and Governors of Amwell View School UKEAT/0243/06 confirmed that the method of making recordings, even if covert, does not affect the admissibility of the recordings.

The Preliminary Hearing judgment

A preliminary hearing rendered the recordings inadmissible as evidence due to three reasons:

  1. The recordings may have been tampered with. They should have been independently transcribed
  2. She was not specific enough as to the relevance of the recordings
  3. The recordings were 39 hours and therefore a disproportionate amount of time would be spent on reviewing these as well as much cost spent.

The Employment Appeal Tribunal’s judgment

The recordings were still rendered inadmissible as evidence but not for the same reasons as stated by the Employment Judge at the preliminary hearing.

The Employment Appeal Tribunal fundamentally disagreed with the first reason the Employment Judge gave – that, due to the fact the recordings may have been tampered with, they should be transcribed independently. The claimant would be subject to huge costs if this was the case and there is no reason to expect that the tapes have been tampered with. If any of the recording was suspected to be tampered with, the original recording could be produced and the respondents could listen to the recording themselves.

The Employment Appeal Tribunal also disagreed with the reasoning that too much time would be spent on listening to these 39 hours. It is likely that not all 39 hours would need to be reviewed in extensive detail and it is clear that much would be irrelevant. This point appears to be a thoroughly reasonable one: it cannot be right to deny access to justice just because it would take too much time and money, although proportionality must always be weighed in the balance.

Mr Justice Underhill did agree on the point made about the relevance of the recordings. However, he stated that “relevance is not a black‑and‑white concept” [paragraph 22] and it has been difficult to state substantial guidelines to advise claimants. Relevance is a matter of degree and proportionality, and it is not enough to simply state that the recordings related to matters in the proceedings as the claimant did. The explanation must be expanded to include:

  • How relevant the evidence is;
  • In what way is the evidence relevant; and
  • The extent to which the matters in the evidence are central to the allegations

The judge further commented, without the transcripts no informed view could be made about the relevance.

Further comments

The appeal judge mulled over the hypothetical idea of the claimant making a fresh application which contained transcripts of the material and a full explanation as to the relevance of them. He included the scenario of a ‘more focused and selective application’ [paragraph 26], advising the court room that although the general practice is that decisions should not be revised, Elias J in English Heritage v Hart [2003] ICR 655 confirmed that there is no absolute rule to that effect.

Given the encouragement to proceed with a fresh application offered Mr Justice Underhill and from the quiet undertones of the likelihood of success – even with the counter-arguments of the Respondents – it would not be surprising if the Claimant submitted such an application.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees

Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk.

Share →

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.52 Average

21 Reviews

Redman's provided excellent legal employment advice for me during a difficult time in my employment. Chris was my lawyer, super efficient, quick, reliable and clearly very experienced in the matter. Could not ask for a better law firm to deal with your query if you are in need of some help. Would definitely use them again in the future. Highly recommending Chris.

Posted 1 month ago

Steven

Chris Hadrill was very professional and responsive. I would highly recommend him

Posted 1 month ago

Dinah

Very Efficient, with very quick email reply’s. I had a matter that needed resolving within a very short space of time and Redmans Solicitors were great with dealing with my matter quickly.

Posted 1 month ago

Ankar

At Redmans the solicitor that was dealing with me was Chris. He dealt with my situation smoothly with clear guidance and explanation

Posted 1 month ago

Anonymous

Clear, concise advice and guidance delivered by an experienced and very capable solicitor, within the timelines required

Posted 2 months ago

Anonymous

Very efficient service. I never had to wIt for more than a day for a reply to any of my queries and the matter was dealt with swiftly.

Posted 2 months ago

Anonymous

Very timely, thorough and helpful advice. Friendly and considerate of the needs of the client

Posted 2 months ago

Anonymous

Very prompt and attention to detail. Thank you for the service

Posted 2 months ago

Chris

Couldn’t be happier with how Redmans successfully handled our seemingly tricky case. By being clear and detailed every step of the way, with the utmost professionalism and courtesy, they made it an informative and eye-opening process, taking the stress out of the situation and ultimately delivered what you would want from such a service. I fully appreciate everything they have done, and if I am ever in need of such services in the future, they will be the first number I contact. Excellent.

Posted 2 months ago

Anonymous

Excellent work delivered with great quality

Posted 2 months ago

Dominic

Chris Hadrill was a great help both in terms of his advice and his expertise. He explained my options to me clearly and concisely enabling me to quickly make the right decision for me in the circumstance. I would not hesitate to recommend Chris or Redmans to friends or colleagues, and would certainly make Redmans my first port of call should I require a similar service in the future.

Posted 2 months ago

Kurt

Redmans gave excellent advice and helped me understand everything in clear concepts. Thank you!

Posted 2 months ago

Anonymous

Resolved my issues

Posted 2 months ago

Keith

Quick fast professional service.

Posted 2 months ago

Michael

"Prompt, efficient and practical advice that resulted in me getting some additional money tax free."

Posted 2 months ago

Anonymous

Patient and thorough advice given to me around my Settlement Agreement

Posted 2 months ago

Anonymous

"Excellent service, getting back to you promptly giving you very good advice."

Posted 2 months ago

Anonymous

I found Chris Hadrill to be an excellent help, he is very knowledgeable and gives good ,concise ,strategic advice .He makes himself readily accessible when you need him.I would personally highly recommend him.

Posted 2 months ago

Christine

Professional, efficient and reliable service provided. I strongly recommend them and I would use this service again.

Posted 2 months ago