The Employment Appeal Tribunal (EAT) has confirmed that covert recordings can be used as evidence in the Employment Tribunal provided a “focused and selective” application to use the material is made.

Ms Vaughan was an employee of the London Borough of Lewisham who brought several employment claims against the Council, including discrimination and whistleblowing.  During the course of proceedings at the Tribunal, she applied to submit into evidence recordings she had made secretly on a Dictaphone.  The recordings, which ran to 39 hours in total, consisted of chats with colleagues and disciplinary meetings attended by the employee, and had been made over the course of a year.

The Tribunal refused to admit the recordings into evidence because Ms Vaughan failed to co-operate over making them available for transcription by an independent company.  She also refused to give detailed information about the content of the recordings or their relevance to the employment dispute.  The case went to appeal.

Although the EAT considered covert recordings to be “very distasteful”, it confirmed that such recordings can be used if their content is necessary in the interests of justice.  This depends on whether the recording is pertinent to the matter at hand, which is a question to be decided by the Tribunal judge.

The EAT decided that transcripts of the recordings were necessary to enable the judge to assess the relevance of the recordings to the case.  However, the EAT found it was not necessary for transcription to be carried out by an independent transcription service.  It would have been sufficient for the employee to provide her own transcripts along with a clear explanation of their relevance.

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