Admissibility of clandestine recording in tribunal claims

In Williamson v Chief Constable of Greater Manchester Police, the EAT held that public interest demands that deliberations by an adjudicating panel remain private. Disclosure of secret recordings of those deliberations will only be allowed where it is necessary to fairly dispose of tribunal proceedings.

There were serious concerns about Mr Williamson’s performance as a probationer. He was not considered suitable to become a police constable. He is disabled. He asked for a civilian role as a reasonable adjustment. The matter was considered by a ‘capability panel’. Panel discussions that took place when Mr Williamson was out of the room were recorded, as he ‘accidently’ left his mobile phone on. Mr Williamson alleged discriminatory behaviour. He accepted the recording was clandestine, but argued for its inclusion as evidence in his tribunal claim. The employment judge refused. 

The EAT upheld the tribunal’s decision. Public interest demands that deliberations by an adjudicating panel are conducted in private, and remain private, to ensure a frank exchange of views. Disclosure of confidential information obtained by a secret recording will only be allowed where it is necessary to fairly dispose of proceedings. But public interest considerations may override the confidentiality of deliberations, where a secret recording is the only indisputable evidence of discrimination. Here, the employment judge had applied the proper tests. The recording in this case produced no ‘incontrovertible’ evidence of discrimination and so, quite rightly, was inadmissible.