Veitch Penny LLP - Exeter | Crediton, Devon

Case

Chairman & Governors of Amwell View School v Dogherty
Employment Appeal Tribunal

Issues

(1) Disciplinary Hearings;
(2) Misconduct;
(3) Admissibility of clandestine recordings

Facts

Mrs Dogherty was employed as a Teaching Assistant by Amwell View School. During her employment, an issue arose regarding conduct involving her treatment of pupils which resulted in her dismissal.

During the course of her claim of unfair dismissal, it became clear that Mrs Dogherty had made tape recordings of the disciplinary and appeal hearings without the permission of those being recorded. She had also recorded the private deliberations of the panel at one of the hearings during adjournment. During preparation for the hearing, the existence of the recordings was disclosed but were described vaguely.

The employer objected to the use of the transcriptions on two grounds. Firstly because they had not been properly disclosed during preparation, and secondly, because of the clandestine nature in which they were taken.

In the first instance, the Tribunal concluded that the recordings, although they were made secretly, were not clandestine and therefore there were not sufficient grounds to exclude them from the hearing as evidence. The Tribunal felt that the interests of the employer could be protected by requiring Mrs Dogherty to provide the actual recordings as well as the transcriptions. An Order for Costs was also made against Mrs Dogherty.

The employer appealed the Tribunal’s decision to the Employment Appeal Tribunal (EAT). It argued that to permit the evidence to be used at the hearing would amount to an unjustified infringement on the right of the privacy enjoyed by the Governors who had been recorded. Furthermore, from a public interest point of view, this case could dissuade governors from attending further hearings.

Decision

The EAT agreed with the employer’s submissions in respect of the public interest argument but only so far as the private recordings of the governors’ deliberations. The recordings of the hearing themselves were admissible evidence because the governors had put themselves in a position where they were in the public domain. There was no infringement of human rights to allow recordings of the hearings, but it was in the public interest that the parties comply with the agreed “ground rules” including respecting the privacy of private deliberations. This was vital to ensure there could be a full and frank exchange of views between those adjudicating the hearings.

Comments

This case serves as a warning to employers that there is always the risk that a secret recording is being made by an employee. Employers should not say anything in a hearing or in an adjournment that they would not want to have repeated or used as evidence at a Tribunal.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.