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

4.76 Average

124 Reviews

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 1 day ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 1 month ago

Anonymous

Excellent service. It was a pleasure to work with Chris H, who is brilliant at what he does and very efficient. Their Senior Associate Rana T. is also very knowledgeable and resolves any queries speedily and efficiently. My issue could unfortunately not be resolved, but that was due to my employer and not the firm. Redmans however did all they could. I would definitely recommend them.

Posted 1 month ago

Anonymous

Very pleasant and quick to deal with. Mnay thanks.

Posted 1 month ago

Anonymous

Easy to get hold of. Quick.

Posted 1 month ago

Owen J

Very helpful, efficient service.

Posted 1 month ago

Anonymous

I am very lucky that I worked with Mr. Chris Hadrill and he managed my case very progressively with an analytical approach and trustfully. Of course with a very positive result. I strongly recommend Mr. Hadrill to any one seeking for a successful result from a highly qualified solicitor.

Posted 2 months ago

Kulbir S

Amazing, quick friendly service from Chris from the start and Caroline. They made me feel at ease during a difficult time, they understood and advised accordingly and I am really happy with the outcome of my case. Will always advise anyone who needs legal advice to contact Redmans, I’m so glad that I did and can confidently say I don’t think any other firm could have handled my case any better. Well done guys, wish you all the best and please keep doing what your doing, simply the best!

Posted 2 months ago

Mark A

Excellent service - rapid and “to the point” advice given to ensure meeting the target time frame

Posted 2 months ago

Anonymous

Chris Hadrill kept me sane during the negotiations with my employer. He was courteous professional and he cared about doing the best he could for me. I will use Redmans again if ever I need an employment solicitor. Excellent service.

Posted 2 months ago

Muhammad Z

Awesome services. Professionals at their best .

Posted 2 months ago

Anonymous

Thanks for the advice and for negotiating a good outcome. Good to have the support at a very stressful time

Posted 2 months ago

Chloe F

My solicitor at Redmans was very helpful and efficient. Really pleased with the smooth service.

Posted 2 months ago

Anonymous

Chris was absolutely excellent. Clear and concise, offering sound advice.

Posted 2 months ago

Tim O

Experienced and competent advisors

Posted 2 months ago

Rachel A

Quick and expert assistance. I would highly recommend Chris for any of your legal needs.

Posted 2 months ago

Joe S

I was very happy with the service provided by Chris and the team at Redmans Solicitors. I felt very comfortable discussing all matters with Chris and am very grateful for all the help and guidance I was given throughout the whole process. I would definitely recommend Redmans Solicitors to friends and family!

Posted 2 months ago

Anonymous

I had a very good experience working with Chris Hadrill during a difficult and emotional time. This held true from the moment I spoke to him on the phone, to the end of the process. Overall, he was attentive, professional and highly supportive. He provided sound advice and clarity. It was the reviews that led me to Redmans! I was very happy to know they were all true. I highly recommend working with Redmans Solicitors. Thank-you to the entire team!

Posted 2 months ago

Anonymous

Good service

Posted 2 months ago

Anonymous

Excellent professional service. Highly recommend.

Posted 2 months ago

Rob O

Very prompt response and I could not fault the service. My solicitor listened carefully to the details of my case and I felt very confident in the advice I was offered. All emails and work done on my behalf with my former employer was of the highest standard and Redmans helped take a lot of the stress out of the situation for me.

Posted 3 months ago