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. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Want to talk to an expert employment law solicitor?

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

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

4.70 Average

73 Reviews

Richard v

Excellent Service

Posted 3 days ago

Anonymous

Very happy from service received. Highly recommend

Posted 3 days ago

Colin W

Very professional and thorough. Sachs who dealt with the bulk of my case was excellent Thank you. .

Posted 3 days ago

Anonymous

I was generally impressed with the fast turn around, efficiency, responsiveness, and consideration of circumstances. I needed a couple of areas of advice quickly and with Redmans help was able to get to a conclusion quickly and with minimum stress. They were friendly and professional throughout - I'd use them again.

Posted 4 days ago

Anonymous

The guidance and assistance I recently received when using Redman's was fantastic. Caroline & Chris were both very informative and understanding walking me through each step. Thank you.

Posted 4 weeks ago

Nicola W

Fantastic service, very quick and efficient. Thank you

Posted 4 weeks ago

Anonymous

Excellent professional service.

Posted 4 weeks ago

Anonymous

As with All solicitors advice without consequence but understood and communicated my legal position

Posted 1 month ago

Anonymous

Prompt, professional and excellent service.

Posted 1 month ago

Dominic C

Excellent service, prompt and helpful

Posted 1 month ago

Anonymous

I found Redman’s to be very efficient and got me the best deal available in the short time scale that was available.

Posted 1 month ago

Victor L

Very professional. Provided excellent advice on my Settlement agreement.

Posted 1 month ago

Anonymous

Professional from start to finish.

Posted 1 month ago

Oliver W

Excellent service provided by Redmans, will certainly consider using again.

Posted 1 month ago

Melanie H

Very professional and extremely personable service. Thank you very much.

Posted 1 month ago

Anonymous

I found Chris to be very approachable and easy to speak with about complex matters. He took action quickly and his updates to me, as his client, were prompt. I would recommend Chris and the team at Redmans without hesitation.

Posted 1 month ago

Anonymous

Good advice

Posted 1 month ago

Anonymous

Overall happy with the service provided by Chris and Rana.

Posted 1 month ago

Anonymous

Chris and Rana provide a great service, very informed, diligent and care about your result, would recommend Redmans

Posted 1 month ago

David W

A speedy efficient friendly service, I would definitely recommend Redmans Solicitors for processing Settlement Agreements.

Posted 1 month ago

Anonymous

Both Rana and Chris were fantastic. From the first phone call I was confident my matter was in good hands. I was not disappointed. I would highly recommend Redmans. Thank you again for all of your support and advice.

Posted 2 months ago