Can covert recordings be relied on in employment tribunal proceedings?

By Nick Pritchett

The Employment Appeal Tribunal (EAT) has recently held that secret recordings of private deliberations made in the course of grievance and disciplinary proceedings can be used as evidence in a tribunal. We consider what this means for employers.

Rule 41 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states that tribunals are not bound by any rule of law relating to what can be used in evidence. This gives judges a wide discretion in terms of what to allow, although case law recommends that they balance the need for claims to be tried on all available and relevant evidence with the fact that the discussions of those put in a position of adjudication should be protected.

Tribunals examining this issue have considered it ‘somewhat distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly or fairly’. There is a recognition that private deliberations can be an essential part of reaching a fair decision by allowing members of a panel to ‘stress test’ employees’ arguments, for example by playing devil’s advocate…

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