Covert Recordings and Costs
The law surrounding the admissibility of covert recordings in the Employment Tribunal is somewhat muddled. There are competing arguments of public interest versus privacy, and unless a particular conversation can be said to be either litigation or legally privileged there is a real risk to an employer that their frank conversations will be played, on tinny speakers, during the course of an Employment Tribunal.
To illustrate the point, let’s use a common example. An employee who is facing a disciplinary process attends the disciplinary meeting. She says what she wants to discuss what happened and is asked to retire whilst the panel decide the issues. The panel stay in the same room whilst the employee sits outside. The employee records that conversation using her iPhone, after accidently pressing the record button and accidently leaving it in her coat pocket on the back of her chair.
At Albion’s Employment and Professional Disciplinary Team seminar this spring, Monisha Khandker spoke at length about the intricacies of this difficult area. I hope she will forgive me in summarising her seminar in this way; there is a sliding scale of ‘juiciness’ the more juicy the titbits gleaned from covert recordings the more likely it is to be admitted. Put another way, the public-interest side of the scale would weigh heavier than the privacy side. If you want to do some further reading in this area (and with many thanks to Monisha), the following cases are a good starting place;
- Aberdeen Steak Houses Group plc v Ibrahim (1988)
- HSBC Asia Holdings BV v Gillespie (2011)
- Chairman and Governors of Amwell View School v Dogherty (2007)
- Williamson v Chief Constable of the Greater Manchester Police and another (2009)
- Vaughan v London Borough of Lewisham and others (2012)
- Punjab National Bank (International) Ltd and others v Gosain (2014)
But what about costs?
We have established that such covert recordings can be admissible, even if they are not, in fact, admitted by the tribunal in an individual case. Employment Tribunals are used to making costs orders against an individual due to their unreasonable behaviour as part of the litigation. Cases such as;
- Dunedin Canmore Housing Association v Donaldson (2009)
- Daleside Nursing Home Ltd v Mathew (2009) and
- Simms v McKee (2006)
show the willingness of the Tribunal to make such orders where dishonest or nefarious actions can be proven.
So, does this extend to covert recordings? Should Mr Recorder Luba QC’s remarks in Dogherty:
“It is always somewhat distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly and fairly”
open the door for a costs order based on unreasonableness?
Zia and others
At first blush we thought we had the answer in the first instance decision of Zia and others v Brighton University Hospitals NHS Foundation Trust (2014). As the ET is not a court of record, the facts of the case are necessarily gleaned from third parties who may not have been parties to the case. For this reason it is worth treating some of the reports of this case with a pinch of salt.
Nevertheless, with due caution, it would appear that the case centred on the following; covert recordings were made of the discussions between the respondent and its lawyers. The discussion related to other without prejudice negotiations. It appears that at least one of the recordings was then sent to the respondent, anonymously, in an attempt to put the respondent under pressure and settle.
The Employment Tribunal took a dim view and awarded costs of almost £70,000 shared between the four claimants. Moreover, the tribunal found that a fair hearing was no longer possible and struck out the claimants’ claims.
A number of features are of note; first, in terms of how serious the breach of privacy was, one can hardly envisage a more confidential discussion to covertly record than a discussion between lawyer and client about without prejudice negotiations. Secondly, the claimants weren’t simply seeking to rely on the recording as evidence, they were apparently using it to extort settlement from the respondent. Therefore one may say the claimants’ actions were of the most serious of their type.
However, those particularly significant features muddy the water as to whether this case, in any way, sets the tone of the debate for costs and covert recordings. Of course, being a first-instance decision it is not binding but it would appear that the use to which the claimants may have put the recording (and the fact that it prohibited a fair trial) may have been the central plank of the costs order, rather than the making of the recording itself.
We know from the cases cited above, in some circumstances the Tribunal’s are prepared to admit covert recordings, this permissive approach will necessarily be in conflict with the awarding of costs in similar cases. However, it is the writer’s view that Zia, in conjunction with the comments of Mr Recorder Luba QC’s may, more generally, lend sufficient support to the making a costs application under the unreasonable conduct limb of the Tribunal rules.