Covert recordings in the Employment Tribunal

With the ability for employees to record meetings on their smart phones at the touch of a button, the use of covert recordings may become more prevalent.  Gone are the days of needing dictaphones or other recording devices when nearly every smart phone is capable of an audible recording.  We come across cases from time to time where the meetings have been recorded covertly and even the adjournments of disciplinary hearings.  The party on the receiving end is often outraged and their first reaction is to say “You cannot use that”.  Well the reality of tribunal evidence is such that the tribunal will want to hear all relevant evidence available to it regardless of how it is obtained.

A recent case has highlighted the issue further where the recording also picked up references to legal advice being given.  In the case of Eyre v Heerma Hartlepool Ltd a number of managers discussed redundancy procedures at a meeting and the meeting was recorded.  The employer made an application to omit the transcript of the recording arguing that it was protected by legal advice privilege.  The meeting was not attended by the employer’s legal advisers but there were no fewer than 12 references to legal advice given the day before in the presence of most of the managers.  The Claimant disputed that privilege attached to the transcript of the recording and wanted to rely on the evidence.

The Tribunal found that legal advice privilege did extend to part of the transcript.  As both parties agreed that it would be possible to redact the transcript, the Tribunal decided to undertake this task itself so that “the man on the Clapham Omibus” on reading the redacted transcript would be unaware that those taking part in the discussion had taken legal advice.

In a climate where covert recordings are easily achievable, this case reinstates the principles that the Tribunal will want to hear all the evidence in a case covert or not but also shows that in some cases the subsequent communications relaying the content of that advice may be subject to legal privilege.

Written by
Edward Aston
7th April 2014

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