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Secret recordings may be admissible to enable understanding of dismissal decision

Makbool Javaid

In Fleming v East of England Ambulance Service NHS Trust, Fleming (F) claimed disability discrimination and unfair dismissal. He wanted to rely on his covert recording of conversations involving panel members during breaks in a disciplinary hearing. An ET denied F’s request on the basis that the contents were private and covered by legal professional privilege (LPP). F appealed. The EAT held that LPP did apply to conversations between the Trust’s solicitor’s and panel members and the panel members discussions about the solicitor’s advice and so would be excluded. As for as the rest, the public interest in hearing any relevant evidence outweighed the public interest in preserving the privacy of private deliberations of the panel, but only because F had been extremely upset by what he had heard, made known his views and then refused to engage in the procedure before his dismissal. The ET could not properly assess the decision to dismiss without reference to the permissible parts of the recording.

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