Disciplinary hearings – have you got it taped?
Chairman and governors of Amwell View School v Dogherty, EAT, 15 September 2006
BACKGROUND Mrs Dogherty brought an unfair dismissal complaint against the school. Prior to her dismissal, the board of governors had conducted two disciplinary hearings and an appeal hearing. The disciplinary panels considered the evidence in private before reaching a decision.
Before the hearing, Dogherty revealed she had secretly taped the disciplinary hearings, including some of the ‘private’ deliberations of the panel. Despite the school’s objections, she sought to rely on these recordings to support her unfair dismissal claim. The tribunal ruled the tapes could be disclosed in evidence provided the hearing was postponed to allow the school to hear them, and if Dogherty paid the costs of the postponement. The school appealed.
DECISION The tribunal considered whether the tapes should be excluded on the basis of:
- the 2004 tribunal rules – the school contended the tapes were revealed far too late in the proceedings for admissibility to be fair
- a breach of Human Rights Act 1998 and the governors’ right to privacy in their private lives
- the clandestine way in which the recordings were made, when Dogherty knew the hearings were in private, and
- breach of public policy and the risk of undermining disciplinary hearings.
The Employment Appeal Tribunal (EAT) said the tapes were relevant, but that postponement addressed the procedural concerns and no crime had been committed. But on the grounds of public policy, it held that recordings of private deliberations could not be relied upon. To do so would undermine the essential ‘ground rule’ – that the panel undertakes a full and frank review in the belief it is in private. The recordings of the hearings did not justify similar protection.
COMMENT Excluding relevant evidence because of the way it was obtained is a difficult issue for tribunals. Many employers will be surprised, however, that the EAT has ruled covert tape recordings of internal hearings to be admissible. While discussions that were clearly understood to be in private are still protected, disciplinary panels should ensure their comments during hearings are accurate and factual.