Recording your hearing can help you, but recording the panel afterwards usually cannot
“EATStands for Employment Appeal Tribunal. It hears appeals from employment tribunal decisions on points of law, not on the facts. It is not a way of simply asking for a second opinion on the outcome. allowed the open hearing recording but excluded the panel's private deliberations”
A recording of your own disciplinary or appeal hearing can be used as evidence in an unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... claim. A recording of the panel's private deliberations after you leave the room usually cannot, because the law protects that discussion on public policy grounds.
- If you plan to record a hearing, focus on the part where you are present and being addressed. That is the part most likely to help you if there is a dispute about how you were treated.
- Do not rely on capturing what the panel says once you have left the room. Even if you manage it, that recording is unlikely to be usable as evidence.
- Get advice before your hearing if your case turns on what is or is not admissible evidence. The rules can be technical, and getting them wrong can weaken your position.
The situation
A teaching assistant at a special school faced disciplinary proceedings over allegations that she had used unreasonable force towards a child and used inappropriate language to, or about, other children. The school held three hearings in private, two disciplinary and one an appeal. At each one, once she and other participants had left the room, the panel deliberated privately before announcing its decision. Without telling anyone, she secretly recorded both the open parts of the hearings and the panel's private deliberations afterwards. She was found guilty of gross misconductBehaviour serious enough that your employer is entitled to dismiss you immediately without notice. Common examples include theft, violence, or serious dishonesty, but what counts depends on your emplo... and dismissed. Her internal appeal failed too.
What the tribunal found
When she brought an unfair dismissal claim, she wanted to use both recordings as evidence. The employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public. allowed this, provided the hearing was postponed so the school could listen to the tapes first, with her paying the postponement costs. The school appealed.
The Employment Appeal Tribunal agreed that no crime had been committed by making the recordings. It also rejected the school's human rights arguments and found that postponing the hearing was the right way to deal with the late disclosure. But it drew a sharp line between the two recordings.
The recording of the open hearing, where she was present and being addressed, was rightly admitted: it went directly to how she had been treated. The panel's private deliberations were different. The EAT ruled that recording out as evidence, on public policy grounds. A disciplinary panel needs to be able to speak frankly about the evidence, trusting that the discussion stays private.
Chairman and Governors of Amwell View School v Dogherty. Case UKEAT/0243/06. Employment Appeal Tribunal. 15 September 2006.