Walls have ears: covert recording and admissible evidence

It is getting more and more common for employees to secretly record telephone conversations, management meetings and disciplinary hearings.

In front of an Employment Tribunal panel, the unguarded and potentially inappropriate comments could boost the chances of a claimant in what might otherwise appear a dubious claim.

But is this fair? Can an employee take advantage of what is clearly an underhand method of getting evidence? Certainly, covert recording has been described as ‘very distasteful’ and ‘discreditable’ by the Employment Tribunal but that has not stopped the evidence being taken into account in the vast majority of cases, despite the employer’s strongest objections.

One case to highlight the risk of secret recording was Fleming v East of England Ambulance Service NHS Trust, which had an added twist as not only were the ‘private’ deliberations of the disciplinary panel members recorded but also the advice that was obtained from the employer’s solicitor during a break in the proceedings. Could the inclusion of clearly legally privileged material in the recording prevent it being admitted into the proceedings before the Employment Tribunal?

The facts of the case

Mr Fleming had been absent from work for considerable periods of time with stress. Following a failure to attend absence management meetings he had been called to a disciplinary hearing. The hearing was difficult and breaks were allowed to ensure that tensions did not escalate. During these breaks, Mr Fleming had secretly left his mobile telephone in the meeting room recording the panel’s private discussions.

He subsequently played it and heard what he considered were inappropriate comments being made about him, so he refused to take part in any further proceedings. This eventually led to his dismissal on grounds of conduct.

Employment Tribunal

Mr Fleming brought claims in the Employment Tribunal, relying on the recordings to show why he had lost confidence in the employer and had not taken part in further proceedings.

The employer objected to the recording being used as it included a reference to the advice given by the employer’s solicitors, as well as a call for further advice that had also been made during the break. An employment judge agreed with the employer, finding that the inclusion of the privileged legal advice rendered the whole recording inadmissible.

The appeal

However, Mr Fleming successfully appealed to the Employment Appeal Tribunal (EAT) which held that whilst the parts of the recording that were covered by legal professional privilege could not be referred to or relied on for any purpose, the remainder of the recording would be allowed into evidence. In this case, the public interest in hearing all relevant evidence outweighed the public interest in preserving the privacy of the disciplinary panel’s deliberations – mainly because Mr Fleming had claimed to have been so upset by the views expressed on the tape that he had thereafter refused to engage in the procedure which had led to his dismissal.

Usefully the EAT pointed out that from previous case law, the following principles had been established in relation to the admissibility of covert recordings.

1. The fact that such evidence is the product of a covert recording is not in itself a ground for not admitting it.
2. There is, however, an important public interest in preserving the privacy of such deliberations; otherwise, full and open discussion may be inhibited and the integrity of the outcome may be undermined.
3. When a party seeks to rely on such evidence, a balance must be struck between the above stated public interest and the public interest in litigants being able to avail themselves of any relevant evidence.
4. The balance must be struck with regard to the particular circumstances of the case; that may involve a consideration of the nature and quality of the deliberations on the one hand, and the value and weight of the evidence on the other.
5. In a discrimination case, where a panel gives no reasons and the only clear evidence of discrimination comes from a recording of the panel’s private deliberations, or where such deliberations show that the panel is simply acting under instructions from management, it is likely that the evidence will be admitted but there are no hard and fast rules, and a balance must be struck in each case.

This case is a reminder that preventing the admission of evidence that may have been obtained in an underhand way is difficult. In practice, management should always be alert to the possibility that their comments will be recorded or overheard. Where there are absences, grievances or disciplinary proceedings the risk will increase. On a practical level steps should be taken to reduce the risk. During telephone conversations and meetings it would be sensible to avoid making comments that could cause embarrassment if later replayed in more formal surroundings. In relation to disciplinary hearings, during breaks the panel should move to a different room to conduct discussions about the case where there is no risk of being overheard or being covertly recorded.