Amwell View School v Dogherty: EAT 15 Sep 2006


The claimant had secretly recorded the disciplinary hearings and also the deliberations of the disciplinary panel after their retirement. The tribunal had at a case management hearing admitted the recordings as evidence, and the defendant appealed, saying also that it had been disclosed too late.
Held: The evidence contained in the recordings was relevant evidence. The question was whether probative evidence could be excluded. To record the private deliberations of the panel was contrary to the public interest. The recordings of the public and private parts of the hearings were to be treated separately. The employers said that the deliberations of the panel were covered by Article 8. They were not protected by respect for family life, and ‘Each of the panel members had put themselves forward to carry out an aspect of the important voluntary work undertaken by many individual members of the public in the governance of schools. To that extent they were putting themselves, and the contributions that they made during the course of that work, into the ‘public’ domain whilst acting in that role. It is difficult to consider them as retaining a right to personal privacy in relation to their participation (by words or conduct) in that socially-important public or quasi-public function. In our judgment, the privacy element of the right to ‘respect for . . private life’ of such a school governor is not engaged at all in the present circumstances. ‘ The claimants had abandoned any suggestion that the recording was a criminal act. Nevertheless, whilst the tribunal were correct to admit the evidence of the public part of the hearing the admission of the recording of the board’s private deliberations was against public policy: ‘there is an important public interest in parties before disciplinary and appeal proceedings complying with the ‘ground rules’ upon which the proceedings in question are based. No ground rule could be more essential to ensuring a full and frank exchange of views between members of the adjudicating body (in their attempt to reach the ‘right’ decision) than the understanding that their deliberations would be conducted in private and remain private. ‘

Luba QC, Lewis, Tatlow
[2006] UKEAT 0243 – 06 – 1509, Times 05-Oct-2006, [2007] ICR 135, [2007] IRLR 198
Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 14(2), European Convention on Human Rights 8
CitedXXX v YYY CA 2004
Buxton LJ: ‘The first and most important rule of the law of evidence, though one that is not always perceived or observed, is that evidence is only admissible if it indeed is relevant to an issue between the parties.’ . .
CitedBarracks v Coles and Commissioner of Police for the Metropolis CA 21-Jul-2006
The claimant sought to allege race discrimination and appealed refusal by the respondents to release required documents. She had been turned down for an appointment to the Trident task force, and sought disclosure of the reasons. The respondent said . .
CitedTaylor-Sabori v The United Kingdom ECHR 22-Oct-2002
The applicant had been convicted of serious criminal offences. There were admitted into evidence intercepts of messages to his pager. He complained that this infringed his right to respect for his private correspondence.
Held: The pager . .
CitedElahi v The United Kingdom ECHR 20-Jun-2006
The claimant complained of the use by the courts of evidence obtained by covert listening devices. In 1996, the chief constable had given authorisations to use a covert listening device in the applicant’s home. It had been in accordance with . .
CitedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
CitedMcGowan v Scottish Water EAT 23-Sep-2004
A court or tribunal may properly admit relevant evidence even where it has been gathered in breach of an Article 8 right to ‘privacy’ where to do so is adjudged to be necessary in order to secure a ‘fair’ hearing as required by both the common law . .
CitedTrapp v Mackie HL 1979
Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the . .
CitedBradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
CitedHeath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
CitedD v National Society for the Prevention of Cruelty to Children HL 2-Feb-1977
Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC similar to that which the law allowed to police informers.
Lord Simon of . .
CitedBNP Paribas v A Mezzotero EAT 30-Mar-2004
EAT Appeal from ET’s decision, at directions hearing, permitting evidence to be adduced, at the forthcoming hearing of a direct sex discrimination and victimisation complaint, of the Applicant’s allegation that, . .
CitedRegina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .

Cited by:
CitedQuinn v Ni Trucks Ltd NIIT 27-Oct-2008
. .
CitedCampbell v Port of Larne, Larne Harbour Ltd NIIT 16-Jan-2009
NIIT Age discrimination is now prohibited, in certain employment situations, by the Employment Equality (Age) Regulations (Northern Ireland) 2006 (‘the Regulations’).
The provisions of the Regulations which . .
CitedWilliamson v The Chief Constable of The Greater Manchester Police and Another EAT 9-Mar-2010
Appellate jurisdiction / reasons / Burns-Barke
Case Management
The Employment Judge sitting alone at a pre-hearing review was correct in excluding evidence obtained by . .
CitedVaughan v London Borough of Lewisham and Others EAT 1-Feb-2013
EAT PRACTICE AND PROCEDURE – Admissibility of Evidence
In support of a discrimination claim the Claimant sought permission to adduce in evidence 39 hours’ worth of covert recordings which she had made of . .
CitedPunjab National Bank (International) Ltd and Others v Gosain EAT 7-Jan-2014
EAT PRACTICE AND PROCEDURE – Preliminary issues – Whether court recordings of relevant meetings prior to Claimant’s alleged dismissal were to be admissible in evidence at trial insofar as they involved private . .

Lists of cited by and citing cases may be incomplete.

Employment, Human Rights, Evidence

Leading Case

Updated: 10 November 2021; Ref: scu.245019