Q: Can an employee who secretly taped a disciplinary hearing use the tape as evidence at a tribunal?

A: POSSIBLY.

In Dogherty v Chairman and Governors of Amwell View School [2006] All ER (D) 112 (Sep) it was alleged that a teaching assistant, Mrs Dogherty, had used unreasonable force in relation to one child, and inappropriate language to, or about, other children. The governors held two disciplinary hearings, and an appeal hearing, in private. They decided that Mrs Dogherty had been guilty of gross misconduct, and she was dismissed.

Mrs Dogherty began unfair dismissal proceedings. Unknown to any of those present at the disciplinary hearings, she had recorded those parts of the hearings at which she had been present (and for which minutes had been taken), and also the governors’ private deliberations. She tried to use the recording as evidence of procedural irregularities at the tribunal hearing.

WAS RECORDING ADMISSIBLE?

The school objected to use of the recording, because Mrs Dogherty had not disclosed it until the first day of the hearing. The tribunal accepted that disclosure was inadequate, but said that prejudice to the school could be avoided by adjourning the hearing. It ordered disclosure of the recording and of a transcript.

Subject to compliance with these conditions, the recording was admissible.

The school appealed to the employment appeal tribunal, saying that:

  • Mrs Dogherty had failed to disclose the existence of the recording until the first day of the hearing
  • to admit a recording made secretly would be a breach of the school’s right to privacy under Article 8 of the European Convention on Human Rights — the right to respect for private and family life.

The EAT rejected the human rights argument, saying that school governors were engaged in public work, not work of a private nature, and that there was no evidence of any likely or potential interference with the private life of any governor.  

A CLASH OF INTERESTS

The EAT recognised that the case involved a clash between Mrs Dogherty’s right to a fair trial, and the need to ensure that disciplinary and appeal proceedings were not undermined by exposure to public scrutiny in secret recordings.

The most important consideration was whether the recording was relevant to an issue between the parties — and it was relevant to whether the governors had conducted a fair procedure.

The clandestine nature of the recording could not by itself be a ground for excluding relevant evidence. The school could not rely on judicial immunity, since the governors were not acting in a judicial capacity, but in the same capacity as senior managers of any employer.

PRIVATE DISCUSSION PROTECTED

The EAT then distinguished between those parts of the hearings at which Mrs Dogherty had been present (the ‘open’ part of the hearings), and the governors’ private deliberations (the ‘closed’ part). The EAT held that the recording of the open part should not be excluded, because the proceedings were minuted, which could be adduced at any legal proceedings. If an employer’s minutes were disputed, which they were in this case, the employee’s notes were admissible, and the recording was only an extension of any note that Mrs Dogherty could have made.

The EAT said that the recording of the closed part of the proceedings should not be admitted, so that, when deliberating in private, governors could have a full, frank exchange of views.

RELEVANCE IS THE KEY

What is interesting about this case is that the EAT did not suggest that the clandestine nature of the recording should in itself prevent admissibility.
Mrs Dogherty should have asked for permission to make a recording and, not having done so, should have disclosed it much earlier. But this did not affect the principle that relevance is the most important consideration. She was penalised in costs for late disclosure, and even illegally obtained evidence was admissible if highly relevant.

The principle is perhaps explained by saying that the closed part of the proceedings is analogous to the private deliberations of a jury, and the open part of the proceedings is analogous to proceedings in open court, which are recorded on tape or by a shorthand writer, and of which anyone present may make a written note.

Michael Segal is a district judge in the family division of the High Court

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