Our first post! You guys are in for a treat.
A common question that is asked of us is: “can I use tape recordings of my employer in the Employment Tribunal?”. The position is a slightly complicated one and depends on the facts of your particular circumstances. However, an attempt to answer this question will cover the following points:
- What is the nature of the duty of disclosure in the Employment Tribunal?
- When and how does disclosure take place?
- When is evidence admissible in the Employment Tribunal?
- What is a document for the purposes of disclosure?
- Is a tape recording a document?
- Can tape recordings be admitted as evidence in the Employment Tribunal?
The duty of disclosure in the Employment Tribunal is more informal and flexible than that utilised in the civil courts, where there is a strict and onerous duty for all parties to disclose documents that are relevant to the case. “Relevant” means documents that both assist and are harmful to that party’s case. In the Employment Tribunal it is expected that all documents that are relevant to the case will be disclosed but the duty is less strict than in the civil courts. It will, however, reflect badly on the offending party if relevant documents are not disclosed and it is clear to the Employment Tribunal that disclosure has been withheld.
It is common for the case management directions of the Employment Tribunal to include a date that parties should effect disclosure on. This may sometimes be split into two parts (firstly, the sending of a list of disclosure and then the sending of the relevant documents at a later date) but it is becoming increasingly common for the Employment Tribunal to merge the two elements and simply specify a particular date on which the list of documents and the documents themselves should be disclosed.
The Employment Tribunal has a wide discretion to determine whether evidence advanced is admissible or not. The result of this discretion is that evidence is generally admissible if it is relevant. However, the Employment Tribunal can order that evidence should be excluded in three circumstances: firstly, if the evidence has been disclosed late in the proceedings; secondly, if the admission of the evidence would be in the breach of the Human Rights Act 1998; and, thirdly, if the evidence should be disclosed as a matter of public policy.
As stated above, it is expected that all parties will disclose all relevant documents to the other parties. So, what is the definition of a “document”? Although the Civil Procedure Rules (“CPR”) are not expressly incorporated into the Employment Tribunal Regulations or the ET Rules, the Employment Tribunal does use the principles set out in the CPR. Under the CPR a “document” is “anything in which information of any kind is recorded” (CPR 31.4). This includes electronic documents, including email and other communications, word processed documents and databases. This is a broad definition and electronic audio recordings are clearly meant to be covered by it.
As above, yes.
This really depends on the nature of the electronic recording. As above, there is a general presumption that evidence is admissible but whether the evidence can be admitted or not depends on the circumstances of the recording (such as whether the recording was covert or not) and (in particular) whether the Claimant was present .
- If the recording of a meeting was covert (i.e. your employer didn’t know you were making the recording) and you (the Claimant) were present: the evidence is admissible to the extent that only the parts of the recording where you were present could be presented to the Employment Tribunal as evidence. Should you leave the meeting for any reason then the part of the recording where you were not present is admissible until you return
- If the recording was not covert and you were present: it is generally admissible, save for any of the specific exclusions referred to above
- If the recording was covert and you were not present: if, for example, you had attempted to record a meeting of your managers that you were not invited to then this would probably not be admissible. The position is probably the same if a third party had covertly recorded a meeting for you.
- If the recording was not covert and you were not present: if, for example, a third party had recorded a meeting with a person relevant to your claim and certain facts had been admitted in this recording then it would probably be admissible as evidence in the Employment Tribunal.
Redmans Solicitors are London employment lawyers and offer employment law advice to employees and employers. They are specialist unfair dismissal no win no fee solicitors and offer compromise agreement advice