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UKEAT/0534/12; LTL 4/4/2013, Employment Appeal Tribunal - Stuart Brittenden
Without sight of transcripts of a claimant's covert recordings of colleagues and managers, an employment judge had no alternative but to decide that the evidence was inadmissible before a tribunal because it had not been possible to form any view on the relevance of the recordings.
The appellant employee (V), who was claiming disability discrimination and unfair dismissal by the respondent local authority employer, appealed against an employment judge's decision at a pre-hearing review that covert recordings she had made would not be admissible as evidence before the tribunal.
V had recorded a large number of interactions between herself and colleagues and managers which she said were relevant to her claims and showed that the contemporary accounts made by the local authority were inaccurate or deliberately falsified. However, she refused to supply the recordings or transcripts before the review, and after considering issues relating to transcription, relevance and the great length of the recordings, the judge decided they were not admissible.
HELD: Without sight of the transcripts, the judge had had no alternative but to decide that the evidence was inadmissible because it had not been possible for her to form any view on the relevance of the recordings. It was not enough for V to say simply that they all related to matters that were relied on in the pleadings. Relevance was not a black-and-white concept: it was necessary to assess how relevant any piece of evidence was, and in what way, and also the extent to which the individual matters that might have been pleaded were themselves central to the allegations. That involved questions of degree and proportionality, HSBC Asia Holdings BV v Gillespie  I.C.R. 192 applied. Thus, the judge could get nowhere without sight of the transcripts of the recordings so that she could take an informed view whether it was indeed proportionate or necessary in the interests of justice that the recordings be admitted in evidence. The transcripts were not produced, and when the judge asked for more details even without the transcript, V had simply relied on generalities (see para.22 of judgment).