Admissibility of covert recordings

Employment tribunals have wide discretion to admit evidence and can allow evidence to be admitted that would not be allowed in ordinary court.

One issue that has arisen is whether a party can rely on a covert recording. Tribunals may find the practice of secretly recording conversations distasteful, but claimants do sometimes resort to such tactics when they are unlikely to get evidence of mistreatment in any other way.

In Chairman and Governors of Amwell View School v Dogherty 2007 ICR 135, the EAT said that the tribunal could admit recordings, and this was confirmed in Fleming v East of England Ambulance Service NHS Trust UKEAT/0054/17. If doing so, the claimant should disclose the recording before the hearing along with a transcript.