Vaughan v London Borough of Lewisham and Ors

Covertly made workplace recordings are not inadmissible merely because they were obtained covertly. Their admission depends on demonstrated relevance and proportionality. A party seeking to rely on recordings must identify the material relied on, provide the recordings and transcripts, and explain their alleged relevance sufficiently for the tribunal to make an informed assessment.

Independent transcription of all recordings is not ordinarily a precondition to admissibility. A party’s own transcripts may be served first, with accuracy and authenticity addressed only where a material dispute requires it. A focused renewed application may exceptionally be considered in the interests of justice.

The claimant brought further disability-discrimination, victimisation, harassment, whistleblowing-detriment and unfair-dismissal claims against her former employer and others. At a pre-hearing review, an Employment Judge refused her application to rely on about 39 hours of covert recordings of workplace interactions.

The claimant had neither supplied the recordings nor transcripts, and had not identified with sufficient particularity which passages she relied upon or why. She appealed the exclusion ruling. The central issue was whether the Employment Judge had erred in refusing admission of the recordings on the application then before her.

1. Appeal dismissed. The Employment Judge was entitled, and in the circumstances had no alternative, to refuse the application as made. The claimant had supplied neither the recordings nor transcripts, and had relied on general assertions of relevance. That material did not permit a reasoned assessment of relevance, probative value, proportionality or the interests of justice.

2. Relevance is a matter of degree, rather than a binary question. The tribunal must assess the particular evidential use of proposed material and the importance of the matters to which it relates. That assessment includes proportionality. The approach was supported by HSBC Asia Holdings BV and Anor v Gillespie [2011] IRLR 209.

3. The Employment Judge’s conclusion was correct, but two aspects of her reasoning were too broad. Covert recordings are not excluded solely because their making was discreditable: Dogherty v Chairman and Governors of Amwell View School UKEAT/0243/06. Nor should independent transcription of every recording ordinarily be required before admissibility can be considered. The claimant’s transcripts and the underlying recordings should first be served. Any genuine and material dispute about accuracy, authenticity or the need for independent transcription can then be addressed proportionately.

4. There was no absolute bar to a fresh, focused application supported by selected recordings, transcripts and a clear explanation of relevance. The Tribunal did not direct that such an application be permitted or allowed. It indicated only that the Employment Tribunal should consider it if made, consistently with the exceptional interests-of-justice approach in English Heritage v Hart [2003] ICR 655. A final admissibility ruling might, where fair and practicable, await the substantive hearing.

• Employment Appeal Tribunal: Appeal dismissed. The refusal of the application to adduce the covert recordings was upheld on the material then available.
• Employment Tribunal: At a pre-hearing review, the Employment Judge refused permission to rely on approximately 39 hours of covert recordings.