Employees should understand the limits of using covert tactics to generate evidence to support employment claims. Meanwhile, employers should be aware that covert evidence may be admissible in certain cases.
Admissibility of evidence is generally based on its relevance to the case in question, a point recently reiterated in Vaughan v. London Borough of Lewisham and Others.
Background: Vaughan v London Borough of Lewisham and Others 
The Claimant, an employee of the Council, brought several claims including a discrimination claim against the Council and some of its employees. To support her claim, she sought permission to adduce evidence in the form of 39 hours’ worth of covert recordings between herself and other managers and colleagues. The application was refused for three reasons in a pre-hearing review; one reason related to the relevance of the recordings to the case.
According to the Judge, the Claimant described the relevance of the recordings by making general assertions to the Council’s case and, on request by the Judge for more specific details about the content of the recordings, the Claimant referred the Judge to her written submissions. This led to a conclusion by the Judge that the probative value of the recordings was unsatisfactory.
Other reasons given by the Judge related to the accuracy and lack of transcription of the recordings, and the length of time it would take to review the recordings by the Council and the Tribunal.
Based on the refusal, the claimant appealed to the Employment Appeal Tribunal.
The Employment Appeal Tribunal’s View on Covert Recordings
On appeal, the earlier decision was upheld although the reasoning was questioned. The EAT held that there was no way for the Judge in the particular circumstance to have formed an opinion on the relevance and admissibility of the recordings in the absence of a transcript. Relevance of evidence is deduced in accordance with proportionality to the case and is not black and white. The EAT reasoned that a different result might be achieved if the Claimant were to file a fresh claim with more information on the contents of the recordings to show their relevance.
The EAT also restated the position of the law on the admissibility of covert recordings. Following the judgement in Dogherty v Chairman and Governors of Amwell View School UKEAT/0243/06, it stated that “covert recordings are not inadmissible simply because the way in which they were taken may be regarded as discreditable”.
In the view of the above, evidence presented in the form covert recordings is not in itself inadmissible but the manner in which it is presented may render it inadmissible. If you would like more information about the implications of this case, please contact Aneil Balgobin via e-mail ABalgobin@rollingsons.co.uk or by telephone on 0207 611 4848.