Can covert recordings be used as evidence in Employment Tribunals?

This was the question raised in the case of Mr G Fleming v East of England Ambulance Service NHS Trust(UKEAT/0054/17/BA).

In that case the claimant had recorded a disciplinary meeting in which he was present.  He did not inform his employer about this.  During breaks in the hearing, Mr Fleming left his mobile phone in the meeting room.

As a result of his actions, Mr Fleming recorded the disciplinary panel’s private discussions.

Mr Fleming stated that this was unintentional but his employers were justifiably sceptical.

What was recorded?

Owing to the phone being left in the room Mr Fleming was able to record:

1. Discussions between the disciplinary panel;
2. Discussions between the disciplinary panel which referred to legal advice; and
3. A telephone call between the disciplinary panel and their solicitor.

What was argued?

At the EAT (Employment Appeal Tribunal) the employer argued that what was said in the breaks was covered by legal professional privilege and should not be admitted as evidence.

The claimant argued that the recording was relevant to the current proceedings and should be allowed as evidence.

What is legal privilege?

Legal privilege covers confidential communications between a lawyer and client for the purposes of giving or obtaining legal advice.

The privilege is absolute and as it belongs to the client it can only be waived by the client.

Privilege will not apply in some limited circumstances such as where there is fraud or where to allow privilege to prevail would be contrary to public policy.

What was the finding of EAT?

On the facts of the case, the EAT found that the discussions relating to legal advice and the call with the solicitor were not admissible on the basis that legal privilege applied.

However, even though the recording had been made in a covert manner this in itself was not a ground to not admit the evidence and as such the recording insofar as it did not relate to privileged information could be referred to.

Comment

This case is a valuable reminder to employers to set out clear guidelines at the start of any disciplinary hearings as to whether or not recording is appropriate.

From a practical point of view it is sensible for employers to have additional rooms available for deliberations to take place away from staff and their representatives so as to avoid their private deliberations being recorded.