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:
- The facts in Vaughan v London Borough of Lewisham and Ors
- The law relating to the admissibility of covert recordings
- The Preliminary Hearing judgment
- The Employment Appeal Tribunal’s judgment
- 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:
- The recordings may have been tampered with. They should have been independently transcribed
- She was not specific enough as to the relevance of the recordings
- 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.
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  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.