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Legal Updates

Can covert recordings be used in tribunal hearings?

15 March 2013 #Employment

The Employment Appeal Tribunal has recently criticised a Tribunal’s reasoning in outrightly refusing to allow a Claimant to rely upon covert recordings that she had made (Vaughan –v- London Borough of Lewisham and others UKEAT/0534/12/SM)

The Claimant had secretly recorded conversations with her managers and colleagues using a dictaphone.  She then sought for these to be used as evidence in her Tribunal claim.  However, the recordings amounted to some 39 hours and no transcripts of these had been produced. 

In reaching its decision the EAT noted that the practice of making secret recordings is “very distasteful”, although it recognised that employees such as the Claimant would no doubt say that it was a necessary step to expose injustice. 

The EAT’s finding was that the original Tribunal’s decision not to allow the recordings to be adduced as evidence was right in the circumstances given that the Claimant had failed to specify which parts of the lengthy recordings would be relevant.  However, the EAT was unhappy with the Tribunal’s reasoning for this, including that the recordings had not been independently transcribed in their entirety which the EAT considered would be an unnecessary and expensive step for Claimant.  The EAT has suggested that the Claimant be allowed to re-apply for the recordings to be admitted, this time with a focused and selective application asking for permission only in relation to a much more limited quantity of material.     


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