Specialist employment lawyer David Dixey discusses the use of certain evidence by employees in unfair dismissal claims.
A recent case heard by the Employment Appeal Tribunal – Fleming v East of England Ambulance Service NHS Trust considered the law surrounding the use of such evidence (for example conversations taking place during breaks in disciplinary hearings etc.) by employees in support of their unfair dismissal claims.
The case in question involved an employee “inadvertently” leaving his mobile phone recording during a break in a disciplinary hearing; this resulted in recordings of the private deliberations which were subsequently heard by the employee who wished to rely upon them. The employee argued that they were relevant because they supported his claims for unfair dismissal and disability discrimination.
Due to the particular content of the conversations the EAT considered two issues:
Legal professional privilege
Any conversations covering or referring to confidential communications between a lawyer and client for the purpose of giving or obtaining legal advice are subject to absolute privilege and cannot be admissible in evidence unless privilege is waived by the person benefiting;
Private deliberations during an internal disciplinary
The EAT stated that the fact the evidence was the product of a covert recording was not in itself a ground for refusing to allow its use. However, a balance needed to be struck between public interest in preserving the privacy of such discussions and the public interest in claimants being able to use all relevant evidence. The decision whether to allow the use of such evidence was likely to be highly fact sensitive and decided on the facts of each case. Although there was a need to lean towards preserving the privacy of such deliberations, their admissibility in evidence would need to be considered in each individual case; where the interests of justice required all available evidence to be heard then this is likely to override the preservation of privacy.
In the case of Fleming (on the specific facts of that case) the EAT allowed the Claimant to introduce the recording in part; ordinary private conversations of the appeal panel were allowed to be admitted in evidence, but conversations covered by legal professional privilege (conversations between employer and their legal advisers) were not allowed to be admitted in evidence. A balance needs to be struck in every case between protecting privacy and advancing justice.
The case of Fleming demonstrates the need for employers handling disciplinaries or similar meetings to exercise caution. Those conducting disciplinaries should take care what is said and be alert to the possibility a meeting may be recorded. It is advisable to conduct deliberations in a separate room away from the employee.
If you require advice regarding employment law or specifically in relation to disciplinary / grievance issues, please contact David Dixey on 01376 320456.
Posted 30/10/2018 by:
Senior Chartered Legal Executive in Litigation & Employment Teams
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