The question
While trying to sort out an employee dispute between a client and his employee (I know, stupid me!), the employee recorded the conversation that took place between us ie myself and the staff member.
I was only acting as an intermediary to try and solve the dispute. But now the employee has lodged a tribunal claim for unfair dismissal and is threating to use our recorded conversation as evidence.
I only acted in a personal capacity in order to try and help them reach an agreement and now have been drawn into this situation unwillingly. What is my legal position here?
The legal verdict
Esther Smith, a partner at Thomas Eggar
It is not entirely clear what the situation is here, but it appears that your client dismissed the employee in question who is now bringing a claim against his employer and trying to involve you.
There are a couple of things that he could do to involve you in these proceedings:
Firstly, the employee could try and include the recording of your conversation as part of his evidence. It is up to the tribunal as to whether or not it chooses to admit such evidence, but given that the recording was done covertly, it is unlikely to be impressed by the employee’s actions.
On the other hand, if you were involved in the matter on behalf of your client, who was the employer, it is likely that the tribunal will see you acting almost as an "agent" for that employer. Therefore, your actions/comments could be relevant to the issues in dispute before the tribunal.
This means that, secondly, the employee could seek a witness order to ensure that you attend the tribunal as a witness, if your evidence and involvement is relevant to the facts to be determined by the tribunal.
If such an order is made, you will have to attend as failure to do so would amount to contempt of court. On attending, you would then need to give evidence on oath (or affirmation) as to what was said etc.
Alternatively, if your evidence is relevant to the case, your client may, in any event, want you to attend as a witness on their behalf and, depending on the relationship with your client, you may struggle to say ‘no’.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham
Employment tribunals have wide discretion as to whether evidence is admissible or not.
If the recording was unlawfully obtained, it may be possible for you to apply to have the evidence excluded, for example, on the basis that it breaches your right to privacy under Article 8 of the Human Rights Act. The tribunal would then need to balance your right to privacy against the right to a fair trial under Article 6 of the Act.
If a violation of the right to privacy is established, it would not necessarily lead to the exclusion of evidence, however. The tribunal would need to consider whether the proceedings as a whole, including the way in which the evidence was obtained, were fair.
If the recording is relevant to an issue between the parties concerned, the tribunal may decide that the recorded conversation is admissible as evidence.
But should you not want to attend the tribunal voluntarily, the employee could, as an alternative, or in addition to, the tape recording, try to obtain a witness order requiring you to be present in order to give evidence. The tribunal would then exercise its discretion as to whether to grant the witness order or not.
It may also be possible to argue that evidence relating to the conversation (which includes the tape recording) should be excluded from the tribunal hearing on the basis that it is “without prejudice”, however.
There are quite strict boundaries around the exclusion of evidence on this basis but, in essence, “without prejudice” communications are statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally.
Such communications can be “without prejudice” even if the words “without prejudice” are not used. (Likewise, simply labelling communications “without prejudice” does not necessarily mean that they are if the above referred to criteria are not met).
On the available information, it is not possible to assess whether your involvement was on a “without prejudice” basis. However, this is an angle that you may want to investigate further if, for example, you decide to try to broker a settlement rather than address the issues underlying the dispute.
Adam Partington is a solicitor at Speechly Bircham LLP.
