using covert recordings as evidence

We spend so much time at work in our life and if things start to go wrong it can have a huge impact on your life. The difficulty for the lawyer is that those recordings have been made in secret and the other party is not aware of them. Authenticate that the recording has not been altered or modified. The answer is not always simple, however past cases give us a clue as to whether a Tribunal will accept a secret recording as admissible evidence. Secondly, in City and County of Swansea v Gayle, it was held that an employer's use of covert video recordings in a misconduct investigation did not make the squash playing employee's dismissal unfair. This article looks at the law on the admissibility of covert audio recordings in the employment context, the approach taken by the courts and the Employment Relations Authority (ERA), and the practical effect of that approach for those in an employment dispute. The power of a recording. Why should a woman be able to get a man sentenced to a year in prison based on zero evidence if he\’s not even allowed to submit actual video evidence which would prevent him from getting raped in prison? In family court proceedings, the available evidence usually boils down to one parent’s word against the other – it can be difficult to prove a parent’s complaint when no one else is around as a witness. In the case of Vaughan v London Borough of Lewisham and Others UKEAT/0534/12/SM, the Claimant sought permission to admit 39 hours of covert recordings of conversations between her, her managers and colleagues. In the 2013 case of Vaughn v London Borough of Lewisham the employee attempted to rely on 39 hours of covert Dictaphone recordings as evidence that her employer had deliberately provided inaccurate and falsified evidence. The ALC submitted that as a matter of public policy, covert recordings of children should rarely, if ever, be admitted as evidence in family proceedings. While that would not prevent the covert recording being used in disciplinary proceedings, it would be possible to anticipate a swift referral to the ICO as a result. A recording may be relied on in evidence if the court gives permission; An application for permission should be made on form C2; LAWYER MONTHLY - Lawyer Monthly is a Legal News Publication featuring the Latest Deals, Appointments and Expert Insights from Legal Professionals around the Globe. Can covert recordings be used as tribunal evidence? Employers are becoming increasingly concerned at the risk of employees using mobile phones with voice recording functions to record disciplinary, grievance and redundancy meetings. In the recent case of Singh v Singh and Ors [2016] EWHC 1432(Ch) the High Court decided that covert recordings of conversations between business partners were admissible as evidence at trial but should be treated with caution. In assessing compensation for unfair dismissal, a tribunal can reduce both the compensatory and basic awards, in some cases to zero, based on the employee’s conduct before dismissal. Therefore, ensuring that any covert recording made would not be damaging evidence – apply the principle that anything you say could be used in evidence. Alternatively we offer face to face appointments on the Isle of Wight, in Eastleigh, Salisbury, Southampton, Fareham, Portsmouth, Winchester and surrounding areas in Hampshire. As always, our advice is to ensure that the correct procedures are followed at all times. Find out more about our friendly team of human beings here! We provide regular legal updates and useful information for employees on how to get on at work and protect your employment rights. Required fields are marked *. Recordings can be produced, but there are some restrictions on both recordings and therefore transcriptions which come from the Regulation of Investigatory Powers Act and the case law surrounding it. This situation is becoming increasingly relevant with the increased use of smart phones and technology that enables recordings to be made on small devices which can very often be concealed. We can of course provide advice and assistance wherever you are based in the UK. Despite possible GDPR and human rights implications, employment tribunals have a wide discretion as to whether to admit covert recordings as evidence. Here you will find a variety of resources and information to help you at work. However, recording conversations without the participant’s knowledge is essentially considered a breach of that person’s right to privacy. Very often, a party will have recorded conversations between either themselves or others, which they believe are of relevant and sometimes determinative evidential value. The area of whether or not covert recordings can be used as evidence in Employment Tribunal situations has always been fairly complicated but there have been important developments that mean employers need to exercise additional caution. Another relevant factor is how the evidence is presented to the court. Alternatively get in touch directly: hello@realemploymentlawadvice.co.uk, Your email address will not be published. Why reputation should be high on your consideration when making decisions about employees. Although relatively old the judgement in this case highlighted that although it is ‘very distasteful’ a covert recording is not considered inadmissible evidence. Please feel free to leave a comment, question or observation below. Therefore, be aware that there is a possibility that an employee is using a mobile phone or similar device to record a meeting. Parties to a dispute wishing to secretly record conversations, or obtain covert CCTV footage, should take legal advice on the potential problems in using such recordings, or risk them being inadmissible as evidence in court. The case highlights and reinforces the point that covert recordings can be admissible as evidence at Tribunal. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances. At a Pre-Hearing Review on 2 August 2012, the Employment Judge decided the evidence … Some judges will immediately baulk at the idea of introducing covert recordings into a case and object strongly to the making of the recording in the first place. Covert recordings of children should rarely, if ever, be admitted as evidence, according to section 13(4) of the Children and Families Act 2014. 13 Mar 2018 By Charles Wynn-Evans. … They would then want to use the recordings in the court proceedings to show the judge what is really going on. Increasingly however, if the evidence is relevant to an issue between the parties, the tribunal will generally hear it. The guidance should not be relied upon in any decision making process. It is also an option to expressly prohibit the recording of any meeting. The High Court has ruled they must be approached with caution. They would then want to use the recordings in the Court proceedings to show the Judg… It is though high-risk conduct and may expose the perpetrator to damages and other penalties. We recognise how stressful it can be and how you can feel like your employer has all the power. These are as follows*: If you have made any secret recordings and want to know whether they can be used or you are contemplating making a secret recording to assist your case, it is important you obtain independent legal advice. But what if that man secretly recorded himself having sex with the woman (in his own house AND for his own protection as a result of this new #MeToo movement)? We will share with you vital updates on the law, HR and best practice. The Employment Appeals Tribunal has also indicated that it would exercise its Part 32 powers to override statute and admit evidence if a fair trial was at stake – so even if precautions were taken by employers to prevent recordings, for issues such as discrimination claims it may still be permitted? © 2021 Lawyer Monthly - All Rights Reserved. The use of covert recording within the workplace raises a number of interesting points, including under the Data Protection Act, however when considering whether such recordings are admissible in evidence, an Employment Tribunal will normally only consider how relevant that evidence is to the issues to be determined by the Tribunal. Can employee rely on 39 hours of recordings. These can provide valuable evidence not available by other means. If recordings are relevant to the claim, tribunals will generally allow them to be admitted as evidence. We are here to help you, give you the answers and options to resolve any problems at work. < Back to Legal Insights. Can covert recordings be used as evidence? Additionally, there is the Hearsay issue: in some cases, using someone’s prior, out-of-course statements in a recording might become problematic in the court, and could make the recording non … This includes mobile telephones, CCTV and body cam video footage. We absolutely love to make your life as easy as possible by providing resources for you when you need them. Covert recordings as evidence against unfair dismissal. The Civil Procedure Rules govern legal proceedings in England and Wales. Firm number: 628713   |   VAT Number: 23 92251 13, If you are a client and we have made a contract with you by electronic means, you may be entitled to use an EU Online Dispute Resolution Service to assist with any contractual dispute you may have with us. We have a fabulous team of enthusiastic, experienced professionals available to assist you in any way possible. However, cases are always subjective and will be judged on their individual facts. Your very own HR & legal department when you need it. The Top 10 Trademark Battles That Swept 2017, From Wooing to Suing: How Sexual Harassment Could Land Your Law Firm in Hot Water, The Top 10 Biggest Trademark Disputes of 2018. to receive all of the latest news from the world of Law. Such a case was H v Dent [2015] EWHC 2090. The Association of Lawyers for Children (ALC) has made submissions on the use of clandestine recordings in family court proceedings. Ensure that you have a policy that prevents employees from covertly recording any disciplinary or grievance meetings. Therefore employers still need to be alert to the cost and reputational damage that covert recordings can cause. So while the recording is covert, if a warrant has been issued, it is not an illegal recording and the evidence can be used in court. With the prevalence of mobile phones and the audio capabilities that they have, as an employer you may wonder whether a covert recording of a meeting, made by an employee, could potentially be used against you as evidence in an Employment Tribunal. It was established in Dogherty v Chairman and Governors of Amwell View School that covert recordings made by an employee are not inadmissible simply because the way in which they were obtained may be regarded as discreditable. Firstly, in Vaughan v London Borough of Lewisham it was held that an employee can use covert recordings in evidence in the Employment Tribunal. She wished to rely on 39 hours’ worth of recordings which she covertly obtained. Court attitudes vary enormously. We have therefore created a range of easy to use documents with accompanying guidance to be used by employers and employees. They are “admissible”. You can read more about our service from them directly here. In this case Mr Fleming attempted to use recordings made of discussions, which took place during breaks in a disciplinary meeting, between the panel considering his disciplinary charges against him. The fact that a recording is not covert is not of itself a ground not to admit it. Can the recording be used as evidence in court? In the slightly earlier case of Vaughan v London Borough of Lewisham and Others the EAT indicated that, had an application to include covert recordings as evidence been made in a more focused manner, with properly supporting transcripts of the material together with an explanation as to why there were relevant; then the Claimant “may get a different result”. We absolutely love to make your life as easy as possible by providing resources for you when you need them. What recent case law teaches us is that they will often permit this where the recordings are not privileged and include evidence that is potentially relevant to the case. When the evidence that is recorded is central to proving a fact in a dispute however, how does the law balance the protection of the … As an employer it is sensible to be aware that covert recordings of disciplinary meetings could be used by an employee in a Tribunal claim.

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