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03 May 2013

Guidance given on when employees can use secret recordings in employment claims

Employers will benefit from guidance on when employees can rely on secret recordings of conversations with co-workers and their employer in employment law claims.

In Vaughan v London Borough of Lewisham & Ors, an employee secretly recorded 39 hours of conversations and meetings with managers and co-workers on a dictaphone. She claimed discrimination and applied for permission to rely on the recordings in her evidence to show the employer's official records were inaccurate.

The Employment Tribunal (ET) ruled they were inadmissible because she had not provided an independent transcript of them and could not give specific answers to questions about them. This made it impossible for the ET to form a view on their relevance and, therefore, admissibility.

On appeal, the Employment Appeal Tribunal (EAT) gave guidance on when secret recordings would be admissible. It said:

• Applicants should provide both a transcript, and a copy of the underlying recordings, so an employer can decide whether it wishes to dispute parts of it. An independent transcript is not required at this stage – it can be the employee's own transcript.

• It is open to a Tribunal to defer the decision on whether secret recordings are admissible until the case is underway, as it may become clear a case can be decided without having to refer to them.

The EAT suggested the employee reapply for permission to use the recordings in evidence but, this time, provide transcripts and an explanation of which parts she thought were relevant and why.

Associate lawyer, Chris Brazier, concludes: "Employers should be aware that employees may try to secretly record meetings and/or conservations and use them as evidence in support of future employment claims. They should consider whether to offer recording facilities of their own so that the fact they are being made is known to all."

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