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||BAILII case number:  UKEAT 0243_06_1509
||Appeal No. UKEAT/0243/06
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
||At the Tribunal
||On 16 June 2006
||Judgment delivered on 15 September 2006
MR RECORDER LUBA QC
MR G LEWIS
MS P TATLOW
|CHAIRMAN & GOVERNORS OF AMWELL VIEW SCHOOL
|MRS C DOGHERTY
Transcript of Proceedings
© Copyright 2006
|For the Appellant
||MS NATASHA SETHI
Hertfordshire County Council
County Secretary's Department
|For the Respondent
||MR J THOROGOOD
Admissibility of evidence. On an unfair dismissal claim, the Employment Tribunal made an order enabling the employee to adduce evidence from unauthorised recordings she had made of the employers' disciplinary and appeal panel hearings, including the private deliberations of the panel members. An appeal against that order raised the issue as to whether there was any public policy justification for exclusion of the evidence or whether its exclusion could be otherwise be justified by reference to the Human Rights Act.
MR RECORDER LUBA QC
- This is an Appeal against a Case Management Order made by an Employment Tribunal in a claim for unfair dismissal. The Order relates to the admissibility of certain evidence. The substantive hearing of the unfair dismissal claim has been postponed pending judgment on this appeal.
- The Appellants (hereafter "the employers") are the governors of the Amwell View School. That Hertfordshire school caters for the educational needs of children between the ages of 2 and 19 who have severe learning difficulties and some of whom also have physical disabilities. The present Respondent (hereafter "Mrs Dogherty") was a teaching assistant and midday meals supervisor at the school from September 1995 until June 2005.
The Events leading to Dismissal
- In June 2005, Mrs Dogherty was dismissed for misconduct at the culmination of an investigation into her conduct by the employers and following the operation of a disciplinary procedure. Her appeal to the governors against that dismissal was unsuccessful. For the purposes of this judgment, it is unnecessary to say more than that the misconduct alleged against Mrs Dogherty related to the use of unreasonable force in relation to one child and the use of inappropriate language directed to, or about, other children at the school.
- In the course of the disciplinary proceedings, there were hearings attended by Mrs Dogherty before panels of governors. Three such hearings took place on: 7 December 2004; 26 April 2005; and 20 June 2005. The first two of these were but a single stage in the disciplinary process (the first hearing having been adjourned over to the second so that, in the interim, a fresh investigation might be carried out). The third hearing was the hearing of the appeal against the dismissal. As might be expected of disciplinary proceedings relating to the conduct of an employee, these hearings were held in private (in the sense that no person unconnected with matters in issue would have been allowed to attend), bearing in mind in addition that these particular proceedings related to the conduct of a member of the school staff towards a pupil or pupils.
- The employers had arranged for Minutes to be prepared of each of the hearings by the school secretary who was also the Clerk to the Governors. However, Mrs Dogherty had caused each of the hearings to be mechanically recorded without the knowledge of any of those present, including the panel members conducting the hearings.
- Each of the three hearings had included, or been followed by, a period or periods during which the members of the panels had deliberated in "private" (either during short adjournments of the hearings or when considering their final decisions). In this judgment we describe these periods as "deliberations" and we use the term "open hearing" to describe the other parts of the proceedings before the panels (albeit that, as we have already indicated, the proceedings were conducted in private). The employers' Minutes in each case only note what occurred in "open hearing" parts of the proceedings. The recording made of the proceedings on 7 December 2004 by Mrs Dogherty extended in scope only to the "open hearing" part of the proceedings i.e. it contained no recording of the deliberations of the panel. On 26 April 2005 the recording equipment mal-functioned altogether and no recording was made of any part of the proceedings on that date. The recording of the proceedings on 20 June 2005 recorded not only the "open hearing" part of the proceedings but also the "deliberations". That is explained by the fact that the recording device was left running (during adjournments and after the hearing) at those times when the parties and their representatives had been asked to leave the hearing room to enable the panel members to engage in private discussions and deliberations.
The Claim to the Tribunal
- By her claim to the Employment Tribunal, Mrs Dogherty sought redress for unfair dismissal. The particulars of her claim criticised the conduct of the employers and their handling of events that occurred during the various disciplinary and appeal hearings. She complained as to how evidence had been presented at the hearings and had been received, how it had been dealt with by the panels and how the hearings themselves had been conducted. Her claim raised issues as to whether she had been fairly or unfairly treated in the course of the investigations and the hearings and those issues might fairly be said to be at the "heart" of the unfair dismissal claim she presented.
- By their response, the employers contended that Mrs Dogherty had been properly dismissed for misconduct following a full and fair investigation (although not as procedurally sound as it might otherwise have been in its earlier stages – a point which had been recognised by the December 2004 panel directing a fresh investigation, which was subsequently undertaken) and following the operation of a fair disciplinary procedure and appeal process.
- The hearing of Mrs Dogherty's claim was initially fixed to commence before an Employment Tribunal on 31 January 2006.
The Order for Disclosure
- The Employment Tribunal had given the usual and appropriate Case Management directions in the lead-up to the substantive hearing of the claim including directions for disclosure of documents which might be relevant and/or used in evidence. On 24 October 2005 Mr Thorogood - Mrs Dogherty's lay representative - gave disclosure of a list of 145 items or documents. Numbers 125 and 126 were described in the following manner:
"125. Record of the Hearing of 20th June 2005
126. Record of the Hearing of 7th December 2004"
- The word "transcript" was not used in relation to the records identified as 125 and 126 notwithstanding that the word "transcript" appears in relation to another document later in the List of Documents.
- On 8 December 2005 Mr Thorogood prepared a witness statement in which he said in relation to the hearing of 20 June 2005:
"On this occasion I recorded the proceedings electronically. The recording included the deliberations of the Panel."
Later the same statement continues:
"I am able to provide this recording and a full written record of it if required. I produce part of the written record … in order to focus on certain issues that I believe show that the Panel could not possibly have formed a proper, fair and genuine belief in the guilt of Mrs Dogherty."
- As foreshadowed, that witness statement attached (as an Exhibit) extracts from what were said to be transcriptions of the recordings.
- On 17 January 2006 Mr Thorogood made a second witness statement (responding to the statements that had by then been received from the employers). At paragraph 10, that witness statement refers to a specific matter that occurred at the hearing in December 2004 and which does not appear in the employers' Minutes of that meeting. Further, in support of an assertion that the particular matter had occurred, paragraph 12 of the witness statement continues:
"12. I have this evidence electronically recorded and can produce this audio recording if required should the Tribunal wish to confirm the truthfulness of this issue."
Later paragraphs in the witness statement contain what purport to be relevant exchanges, from the proceedings at the December 2004 and June 2005 hearings, which were based on the recordings. The tenor of the witness statement is that various matters occurred at the two hearings which were not properly recorded in the Minutes (or were not recorded in the Minutes at all because they occurred during the non-minuted deliberations) but - it is said - are properly reflected in the transcripts of the recordings. It is asserted that the recordings contain confirmation that the account of events - as given in the witness statements of Mr Thorogood - is accurate and truthful.
- In the early stages of the first day of the hearing at the Employment Tribunal, Mr Thorogood made it plain - in so far as it was not already apparent – that, in developing Mrs Dogherty's case, reference would be made to extracts from transcriptions of the recordings made of the two hearings. Objection to that use of the recordings or any transcriptions of them was taken by the employers on what the Employment Tribunal record as having been two grounds. These may be conveniently labelled "inadequate prior disclosure" and "the clandestine nature of the recordings". The employers urged that on either or both of those grounds the Tribunal should not receive in evidence the transcriptions of the recordings.
- The Employment Tribunal were clearly satisfied that there was some merit in the first ground of objection. They found that the entries at 125 and 126 of the List of Documents had not adequately indicated the existence of a recording of the hearings or of a transcription of those recordings. The Tribunal took the view that clear disclosure of the existence of the recordings had come very late and in the immediate run-up to the commencement of the hearing.
- However, the Employment Tribunal decided (as their Written Reasons indicate) that notwithstanding Mrs Dogherty's procedural non-compliance, the interests of the employers could be protected, and any prejudice minimised or eliminated, by: (1) adjourning the hearing; (2) ordering Mrs Dogherty to pay the costs thrown away [agreed at £1,175] and; (3) ordering Mrs Dogherty to provide the actual recordings - and copies of the transcriptions - to the employers.
- The latter order was obviously – at least in part – intended to enable the employers to have an opportunity to check the accuracy of the transcriptions and their completeness (or otherwise) by comparing the contents of the recordings to the terms of the transcripts of them produced by Mrs Dogherty.
- To give the employers a full opportunity to do all of that, the deadline for delivery of the recordings and transcripts was fixed for 8 February 2006. The hearing itself was rescheduled for 26 June 2006. The order for disclosure has since been complied with.
- In their Written Reasons, the Employment Tribunal made no specific findings as to whether the recordings were made "clandestinely" which was the feature grounding the second basis of the employers' objection to the admission of the transcript.
- No doubt this was because it was common ground that:
(1) Mrs Dogherty had not told the disciplinary or appeal panels (or the employers' representatives or the witnesses called for the employers at the hearings) that she was recording the proceedings;
(2) it was not seemingly evident to anyone present that she was doing so; and
(3) the panels conducting the hearings had not been asked for (nor given) permission for the mechanical recording of the hearings or the deliberations.
To that extent the recordings had been "clandestine".
- However, it is plain that the Employment Tribunal did not consider this sufficient ground to exclude the material. They said:
"1 The claimant sought to produce evidence of recordings of the disciplinary/appeal hearings of 7 December 2004 and 20 June 2005. The respondents objected on the grounds of inadequate disclosure and on the grounds that the recordings were carried out clandestinely.
2 As the claimant considers that the accurate recordings are important evidence which the Tribunal should consider we have decided after considerable deliberation that the evidence should be received."
- By letter, the employers sought a review of the Employment Tribunal's decision in relation to the admission of the recorded material. That letter repeated the objections that had been advanced before the Tribunal on the "late disclosure" point but continued:
"…the bedrock of this application for a review is: Should the decision of the Tribunal go unchallenged, this would effectively mean that the private remarks of school governors made during secret deliberations could end up in the press. The respondent and other public bodies in the same position may now, as a result of the Tribunal's decision …, be unable to find school governors who are willing to attend such disciplinary/appeal hearings for fear of their views ending up in the press. Therefore, this case involves a wider public interest and it is in the interests of justice that this case be reviewed"
The application for review was refused by a Chairman. His reasons were as follows:
"The points made were all taken into consideration by the Tribunal before making the decision. The Tribunal accepted that the transcript had (albeit obliquely) been both disclosed and referred to in witness statements and by ordering disclosure of the originals [the Tribunal] made it possible for expert tests to check that the recording had not been "doctored". It is suggested that if there is a public policy argument for refusing to admit probative material it may be better for this to be aired at a higher level".
We have added the emphasis in that extract. The application for review having failed, this appeal by the employers has come on before us.
- In form, this is an appeal against the actual order made by the Employment Tribunal (i.e. for the disclosure of the recordings/transcripts) but in substance - as has throughout been evident - it is an appeal against the decision of the Employment Tribunal to allow the particular evidence (i.e. the content of the recordings as reduced to writing in the transcripts) to be adduced at the hearing of the merits of the unfair dismissal claim. There is no cross appeal by Mrs Dogherty against the adverse costs order or the requirement for disclosure.
- The Notice of Appeal sets out the same "bedrock" point as had been made in the request for the review. The grounds of appeal assert inter alia that to allow into evidence the transcript - which includes the private deliberations of panel members clandestinely recorded without the knowledge of the panel members - would amount to an unjustified infringement of the right to privacy enjoyed by governors on the panels and that the public interest requires that the private deliberations of those involved as members of disciplinary and appeal panels remain "private". It is asserted that the public interest would not be served if unauthorised recordings of these deliberations were to come into the public domain.
- For her part Mrs Dogherty resists the appeal on the basis that there was no error made by the Tribunal in allowing the admission of this evidence. She takes issue with the broad public policy points advanced by the Notice of Appeal and indeed seeks protection of her own "human right" to a fair hearing as protected by Article 6 of the European Convention on Human Rights. By her grounds of resistance, she asserts that the evidence contained in the recordings is relevant to the issues raised in her unfair dismissal claim. If the "deliberations" of the panels in question were fair and honest nothing is to be feared, she asserts, from their introduction in evidence.
- In our judgment, the obvious first question to be asked on any decision relating to the admission of evidence is whether the evidence in question is relevant to an issue between the parties. As Buxton LJ said in XXX v YYY  EWCA Civ 231,  IRLR 471 at paragraph :
"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."
- At the opening of this appeal, therefore, we invited Ms Sethi (for the employers) to indicate whether or not it was accepted that the evidence contained in the transcripts was relevant to an issue between the parties. Her submission was that the content of the recordings as represented by the transcripts was not relevant to any issue in the proceedings and ought to have been excluded by the Tribunal on that ground. No such assertion appears in the Notice of Appeal. Ms Sethi did, however, accept that the questions of proper/improper conduct of the disciplinary panel and the appeal hearing were matters in issue between the parties in relation to the fairness or otherwise of the dismissal. That concession was inevitable given the terms in which the Employment Tribunal had itself defined the issues between the parties in its earlier Case Management Order of 25 September 2005. Moreover, Ms Sethi boldly asserted that, while the employers' Minutes of the panel proceedings contained relevant evidence, the transcripts of the recordings made by Mrs Dogherty of those same proceedings did not.
- We have no hesitation in rejecting Ms Sethi's submission. The Tribunal were plainly satisfied that the material contained in the recordings was relevant to Mrs Dogherty's case and noted the importance that Mrs Dogherty was placing upon the content in paragraph 2 of their reasoning (extracted above). Moreover, in his decision on the review, the Chairman makes it plain that the Tribunal had accepted that the evidence in the transcriptions was "probative". An examination of the claim as presented to the Tribunal, the employers' response to it and the Tribunal's earlier distillation of the issues, amply demonstrates that the events at the disciplinary and appeal hearings - and the conduct of those hearings - were matters very much in dispute as between the parties on the unfair dismissal question.
- In those circumstances, an Employment Tribunal would normally be bound to admit evidence that it had found to be relevant to the issue before it. Yet it is contented that the Tribunal erred in law in failing to exclude it. Is there a basis on which such relevant evidence could and should have been excluded by the Tribunal in its determination of the unfair dismissal claim? That is the central issue on this appeal. It is to be determined having regard to the fact that an Employment Tribunal shall "…not be bound by any enactment or rule of law relating to the admissibility of evidence in proceedings before the courts": Schedule 1 paragraph 14(2) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004. We rehearse below the alternative grounds on which Ms Sethi sought to justify its exclusion.
The First Basis for Exclusion: Procedural Unfairness
- The first basis for exclusion advanced on this appeal was that, in the exercise of its Case Management powers, the Tribunal should have refused to admit evidence which had been disclosed very late and with which the employers had had no opportunity to deal (whether by testing the accuracy or completeness of the transcriptions or otherwise). Ms Sethi submitted that the Tribunal ought to have had more regard to the facts that: the case was (at that stage) ready to be heard immediately; the employers' Minutes had not been earlier disputed; the witnesses had all arranged to attend; an adjournment would inevitably cause delay; and that the employers would have the trouble and expense of listening to all the recordings, comparing them with the transcriptions to check their accuracy, and (if it was thought necessary) seeking expert advice as to the integrity of the recordings. She submitted that had the Tribunal exercised its discretion by reference to the "overriding objective" set out in regulation 3 of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 it could not properly have decided to admit the evidence arising from the recordings, given all the consequential difficulties that would flow from that decision.
- We are quite satisfied that the decision taken by this Tribunal was within the range of responses that a reasonable Tribunal might make, in the exercise of its powers to control its own proceedings, to an application to exclude otherwise relevant evidence which had been disclosed late. In furtherance of the 'overriding objective' the Tribunal considered that it could do justice by allowing-in the evidence, by giving the employers a full opportunity to consider and deal with it, and by penalising Mrs Dogherty in costs for disclosing it late. In our judgment, any potential prejudice to the employers' ability to conduct their case was amply dealt with by the procedural directions that the Tribunal gave. The matters urged upon us by Ms Sethi were plainly before the Tribunal and were considered by them. It is not the function of this Appeal Tribunal to exercise afresh a discretion conferred on a Tribunal in the absence of any error of law. As we have so recently been reminded by the Court of Appeal
"Ordinarily, case management orders made in the exercise of the employment tribunal's wide discretion will not be disturbed on an appeal, which is confined to questions of law"
That is taken from Barracks v Coles  EWCA Civ 1041 at . We are not satisfied that any error of law has occurred in this respect and we have no hesitation in rejecting this part of the employers' appeal. However, the conclusion expressed in this paragraph represents the views of only a majority of this Appeal Tribunal (Mr Recorder Luba QC and Mr Lewis). For her part, Ms Tatlow would have allowed this ground of appeal on the basis that the Employment Tribunal ought not to have allowed-in the evidence of the transcripts as to do so was, essentially for the reasons advanced by Ms Sethi, unfair upon the employers and would have (and did have) a disproportionate impact on the progress of the claim.
The Second Basis for Exclusion: Human Rights
- The second substantial point taken in the grounds of appeal related to "human rights". Ms Sethi submitted that to admit the disputed evidence would involve the Tribunal itself infringing the human rights of the governors who were members of the relevant panels. That, she argued, would be inconsistent with the duty imposed on a Tribunal (or any other public body) by section 6 of the Human Rights Act 1998 not to act incompatibly with convention rights.
- The rights that Ms Sethi sought to invoke were the rights as enjoyed by the individual governors under Article 8 of the European Convention on Human Rights. That provides:
RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
- Ms Sethi reminded us that the European Court of Human Rights had found Article 8 to be infringed in cases where public authorities had recorded or intercepted private conversations and sought to rely on those recordings in evidence. We were referred to Taylor-Sabori v United Kingdom (Application 47114/99, 22 October 2002) which has recently been followed and applied in Elahi v United Kingdom (Application 30034/04, 20 June 2006). She submitted that an order allowing into the public domain, at a Tribunal hearing, the transcriptions of remarks of the panel members made at the disciplinary and appeal hearings (and most particularly during the "deliberations") would involve an infringement of their rights "to respect for … private and family life". This extraordinarily broad submission was not supported by any authority.
- We reject entirely the proposition that what occurred could possibly amount to the interference with any aspect of the right to "respect for… family life" enjoyed by any member of the panels of governors. The integrity of the relationship between a governor and a member of his or her family is not touched at all by admission of the evidence in question in this case.
- In relation to the right to "respect for … private life", it was submitted that there would be an interference with the governors' private lives because their privacy would be invaded if their remarks made during "private deliberations" or their observations made during the "open hearings" (which were conducted in the absence of the public) should reach the public domain.
- In our judgment, that not a correct analysis of the legal position. 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.
- Even if we are wrong as to that as a matter of principle, there is no actual evidence of any likely or potential interference with the private life of any governor who was a member of either of the two panels in question in this case. Rather, we are invited to accept the general proposition that the governors may be caused upset or disquiet if their remarks reach the public domain. We decline that invitation. This scenario is quite distinguishable from the facts of XXX v YYY (see above) which was relied upon by Ms Sethi and in which this Appeal Tribunal (Mitting J presiding, 9 April 2003) was dealing with the likely impact of public disclosure of certain evidence - in the form of images on a videotape - on the privacy of a child. There, this Tribunal was able to clearly hold at :
"The public description or publication of such images would be severely embarrassing to him as he grows older. A more obvious infringement of his right to respect for his private life is hard to envisage."
Nothing of that nature emerges in this case.
- Even if we had been satisfied that there was an arguable infringement of Article 8(1) of the Convention, we would next have had to direct ourselves to Article 8(2). That contains a broad range of circumstances in which there may be justifiable interference with the Article 8(1) rights. As the European Court of Human Rights has repeatedly held, the provisions of Article 8(2) facilitate a balance between the protection of an individual's Article 8 rights and the protection of the convention rights and freedoms of others. Certainly, the first step in applying Article 8(2) is that any interference must be "in accordance with the law". As to that, we need only set out the following passage from Jones v University of Warwick  EWCA Civ 151,  1 WLR 954 at :
As the Strasbourg jurisprudence makes clear, the Convention does not decide what is to be the consequence of evidence being obtained in breach of Article 8 (see Schenk v Switzerland  13 EHRR 242 and PG and JH v United Kingdom application no. 44787/98 (25/9/2001 paragraph 76). This is a matter, at least initially, for the domestic courts. Once the court has decided the order, which it should make in order to deal with the case justly, in accordance with the overriding objectives set out in Part 1.1 of the CPR in the exercise of its discretion under Part 32.1, then it is required or it is necessary for the court to make that order. Accordingly, if the court could be said to have breached Article 8.1 by making the order which it has decided the law requires, it would be acting within Article 8.2 in doing so.
- In the instant case, the Tribunal had satisfied itself that the evidence - which it had decided was relevant - should be admitted. As Jones itself demonstrates, and as the decision of this Employment Appeal Tribunal in McGowan v Scottish Water (Lord Johnston presiding, 23 September 2004) relied upon by Mr Thorogood exemplifies, 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 and Article 6 of the convention. We are not satisfied that the possibility of an infringement of the panel members' rights under Article 8 would justify an exclusion of the relevant evidence on the facts of this case.
- We should record that no argument was advanced to us, or to the Tribunal below, that the admission of the evidence in question during a public hearing might infringe the rights to privacy (whether under Article 8 or otherwise) of the children referred to in the transcripts, the parents of those children, or of the school staff and other witnesses who gave evidence before the panels. If, at the substantive hearing of the present claim, the Tribunal are persuaded that such an infringement may occur they have available their powers under Schedule 1 paragraph 16(1)(b) of the Employment Tribunals (Constitution & Rules of Procedure) Regulations 2004 to take certain evidence in private.
- No doubt mindful of the fact that another alternative would be for the parties to agree, in advance, that references in all the evidence to children and their parents be anonymised, the Tribunal expressly stated in their reasons (albeit in the course of encouraging alternative resolution of the claim):
"Both parties are reminded that the hearing may well be covered by publicity,
both as to the evidence given during the hearing and the judgment at the end."
The Third Basis for Exclusion: Illegality
- An alternative basis upon which the case for exclusion had been advanced before the Tribunal was, as we have noted, that the recordings had been made "clandestinely". It may well have been put higher than that by Ms Sethi to the Tribunal, on the basis that the recordings were the result of "unlawfully bugging" the hearing and that they amounted to illegally obtained evidence.
- However, before us, Ms Sethi expressly abandoned any contention that the recordings of the proceedings had been in breach of any provision of the criminal law. Ms Sethi did draw our attention to the fact that had the recordings been made of similar discussions conducted over the telephone (rather than face-to-face) there might have been a breach of Part I ("Unlawful and Authorised Interception") of the Regulation of Investigatory Powers Act 2000. However, Ms Sethi – despite the assertion in her skeleton argument that "… the interception by the Claimant is unlawful…" - ultimately abandoned any contention that there had in fact been any breach of that statute, or of any other statutory provision, in recording the panel proceedings (whether as to the "open hearing" or the "private deliberations"). In particular, it was no part of her case that the recordings amounted to "surveillance" as regulated by Part II of the 2000 Act.
- No case was advanced before us that the recordings were made in breach of any contract. As they were not recordings made by a public authority, they could not have been made in contravention of the Human Rights Act 1998. Ms Sethi showed us no relevant statutory equivalent of provisions that might prohibit unauthorised recording of court proceedings or the deliberations of juries.
- There is, accordingly, nothing in the proposition that the evidence could be excluded because the recordings were made "illegally" or were the result of any "unlawful interception" (the latter phrase being used in the employers' skeleton argument). As Ms Sethi correctly recognised, the "clandestine" nature of the recording could not itself be grounds for excluding the admission of the evidence save as part of any general "public policy" justification for exclusion.
The Fourth Basis for Exclusion: Public Policy
- As the Chairman clearly recognised, in dealing with this matter on review, if the evidence in this case is to be lawfully excluded that will be so only – on the facts of this case - as a matter of public policy.
- On the one hand, there is a clear public policy that claims brought before a court or tribunal should be tried on all the available relevant evidence. On the other hand, there are clear public policy justifications for the occasional exclusion of otherwise relevant evidence.
- For example, the important public policy of encouraging parties to negotiate frankly to achieve settlement of disputes has spawned a long-established "without prejudice" rule excluding otherwise relevant evidence which might have come to light in such negotiations (see Bradford & Bingley plc v Rashid  UKHL 37 for a modern restatement of that rule).
- This present case may be said to give rise to a similar clash of public policies. Mrs Dogherty asserts that her right (protected by both the common law and Article 6) to a fair hearting on the best available evidence will be damaged or compromised if the recordings are shut-out. The employers urge that the integrity of school governor hearings in staff-related matters will be undermined if the evidence goes in, with the danger that employees will be generally encouraged (by any such decision) to adopt the practice of secretly recording proceedings including "private deliberations" and that governors will be unwilling to serve on such panels.
- We have already noted (at paragraph 30 above) that the Employment Tribunal is not strictly bound to apply - in the adjudication of claims before it – the same "rules" on the admission of evidence as would be observed by a Court. The consequence of that may necessarily be that even the long-established rules of evidence adopted by the civil courts and based on public policy (including the "without prejudice" rule) will yield to permit the admission of relevant evidence before a Tribunal in an appropriate case: see BNP Paribas v Mezzotero  IRLR 508, EAT.
- By the same token, however, an Employment Tribunal might be said to have power to exclude on general public policy grounds any otherwise admissible relevant evidence. Indeed, the modern position in the civil courts is that a judge enjoys a general discretion to exclude otherwise admissible evidence: Civil Procedure Rule 32.1(2).
- Ms Sethi submitted in terms that the recordings in this case (and the transcripts of them) should be excluded on public policy grounds. She reminded us that Mrs Dogherty had known:
- that the hearings would be held in private (in the sense that they would not be open to the public);
- that the matters canvassed in those hearings would refer to and identify children and their parents;
- that the proceedings would be recorded by the Clerk in the Minutes in the normal way;
- that she had not sought permission from, or the consent of, any of those involved to the making of her own recording nor informed them of her intention to do so;
- that during the periods when she and the employers' representatives and witnesses had withdrawn from the proceedings, the panel members would have expected that their deliberations would not be recorded by anyone;
and submitted that in those circumstances the evidence should be excluded on broadly the same public policy grounds as would justify the exclusion of evidence of what occurred at in camera hearings of any judicial or quasi-judicial body and/or during the private deliberations of such a body. Her submission was that it would be contrary to the "public interest" if such evidence were to be admitted in this and similar future cases.
True it is that the law in relation to public policy or public interest immunity is not fixed: see Lord Hailsham of St. Marylebone's statement in D. v. National Society for the Prevention of Cruelty to Children  AC 171, 230, that:
"The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop".
But as the House of Lords later held in Regina v. Chief Constable of West Midlands Police, ex parte Wiley  1 AC 274 per Lord Woolf @ p305.
"The recognition of a new class-based public interest immunity requires clear and compelling evidence that it is necessary".
Given that authoritative judicial indication, we were first concerned as to whether there was any existing "public interest" class into which the present case could be brought.
No such class had been identified by the employers before the Tribunal, in their grounds of appeal or in their skeleton argument. In the course of oral argument we invited Ms Sethi to identify any established "public interest" class upon which she relied. In response, she developed a submission that the instant case fell into the broad class of public policy known as "judicial immunity" or "judicial privilege".
As has been recognised for over a century, those who conduct judicial proceedings enjoy immunity from suit in relation to their conduct in - and of - those proceedings under the principle of "judicial immunity" or "judicial privilege". Here, by analogy, it was submitted by Ms Sethi that the governors were acting in a quasi-judicial capacity (particularly on the appeal) and that Mrs Dogherty is seeking to use what they said and did to sustain a claim against them (albeit in their capacity as employers).
Ms Sethi put before us the decisions of the House of Lords in Trapp v Mackie  1 WLR 377 and of the Court of Appeal in Heath v Commissioner of Police  EWCA Civ 943,  ICR 329 and  IRLR 270. The first established that the rule of judicial privilege was applicable to prevent a witness before a commissioner appointed under a statutory power (to determine a dispute between a headmaster and an education authority over the dismissal of the former) from being sued for malicious falsehood in respect of evidence given before the commissioner. The second decided that the privilege gave immunity from suit for sex discrimination to the police members of a Disciplinary Board established under the Police (Discipline) Regulations and conducting a hearing of a complaint against a police officer. Ms Sethi contended that, by analogy (particularly by reference to Heath), the immunity or privilege extended to the disclosure of the deliberations of a panel of governors in disciplinary and employment matters – at least in relation to hearings such as those convened in Mrs Dogherty's case.
An obvious issue, therefore, is whether these panels of school governors were conducting "judicial or quasi-judicial proceedings" such as might attract the benefit of judicial privilege.
Having reviewed the impact of the judicial immunity or privilege rule on courts and judicial tribunals, Sir William Wade in Administrative Law (9th Ed) states at p789 that:
"At the other end of the scale it seems obvious that judicial immunity will not extend to an administrative authority merely because its function is denominated judicial or quasi-judicial for the purposes of the rules of natural justice or of control by certiorari; for in those cases the function is basically administrative. Thus no immunity should be enjoyed by an inspector holding a public inquiry."
That text then offers other examples of agencies and bodies not thought subject of the immunity
and of a more quasi-judicial standing than panels of school governors.
In Halsbury's Laws (Vol 1(1) at para 199), in concluding a review of the requirements for "judicial privilege", it is written that:
"It is not, however, sufficient that the tribunal should be acting judicially; it must also be a court or authorised tribunal".
but the text goes on to explain (at para 200) that a wide range of bodies discharging quasi-judicial functions may also be protected by judicial privilege. For a modern judicial statement of the correct approach to be taken in relation to such quasi-judicial bodies we need only cite the following passages from Heath (above) at  to :
20. There is much authoritative jurisprudence on the degree of similarity required of a tribunal as to its constitution, function, procedures and powers with those of a traditional court to render the tribunal's proceedings "judicial" for this purpose, most notably Royal Aquarium and Trapp v. Mackie  1 WLR 377, HL. Miss Booth accepted that there are similarities between a police disciplinary tribunal and a traditional court which might, if that question were considered on its own, support a finding that the tribunal is a court to which the rule of absolute immunity attaches. However, notwithstanding her greater reliance on her third ground as to the need for the rule in this context, she did not abandon this original challenge.
21. The nature of the exercise in determining whether a body is to be regarded as "judicial" for the purpose of giving absolute immunity to those involved in its proceedings is not a technical or precise one. It is one of determining its similarity in function and procedures to those of a court of law. It is a matter of fact and degree, one, as Lord Atkin said in O'Connor v Waldron  AC 76. HL, at 81, "not capable of very precise limitation". Thus, in Royal Aquarium, Lord Esher spoke, at 442 of:
"an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes … [namely] acting … in a manner as nearly as possible similar to that in which a court of justice acts in respect of an inquiry before it."
And Lord Atkin in O'Connor v Waldron referred in the same context, and in confirmation of Lord Esher's proposition, to a tribunal that:
"has similar attributes to a court of justice or acts in a manner similar to that in which such courts act".
22. In Trapp v Mackie Lord Diplock, after consideration of all or most of the relevant reported authorities over the near century since Lord Esher formulated the test of similarity, identified four aspects for consideration: 1) whether the tribunal is "recognised by law", 2) whether the issue is "akin to" that of a civil or criminal issue in the courts; 3) whether its procedures are akin to those in civil or criminal courts; and 4) whether the result of its procedures lead to a binding determination of the civil rights of a party or parties. However, at 383-384, he made plain after a detailed analysis of the evidence in the case going to the similarities under those four categories, that satisfaction of one of them would not on its own suffice to attract absolute immunity, and also that failure to satisfy one would not necessarily be fatal to it
Ms Sethi was unable to develop her submission as to why the class of "judicial privilege" should extend to a school governing body (or to committees of governors) whether undertaking the function of determining staff disciplinary matters, or staff appeals against dismissal or, indeed, school admissions. We had no evidence or submissions as to the circumstances of the establishment of the governors' panels in the instant case, the relevant law or procedures under which they were/are established, nor any submissions in terms addressed to any of the four features identified by Lord Diplock. Without having had any notice of such issues, Mr Thorogood had not come prepared to deal with them.
In the absence of any such evidence or submissions, we are not satisfied that it can be said that the Employment Tribunal erred in law in not excluding the controversial evidence in this case by application of the principle of "judicial privilege" (most particularly as that invitation was never extended to them).
We are far from satisfied that this is such a "plain case" in which Lord Diplock's four indicia are so obviously satisfied that the Tribunal must have erred in not seeing the present case as one for the application of judicial privilege. To the contrary, the governors in the present case were – on the limited material before us - acting in the same capacity in relation to employment matters as would a panel of senior managers of any other employer. There was no obvious flavour of "judicial" function or authority here such as to require us to hold that an Employment Tribunal must have been satisfied that it was a case for the application of the common law principle.
Even if we are wrong as to that, it is important to recall that the function of judicial privilege is that it provides "immunity from suit" to those who take part in proceedings to which it applies. Here, the privilege would not be being invoked to protect anyone from suit. Mrs Dogherty brings her claim against her employers for unfair dismissal. The witnesses who appeared before the governors' panels are not being sued. Nor are the individual governors who took part in the proceedings. No authority was put before us to suggest that the privilege extends generally to prevent relevant evidence disclosed in one set of proceedings from being used in subsequent proceedings in which no relief is sought against anyone who took part in, or gave evidence in, the earlier proceedings. That invitation to make a quantum leap in the application of the judicial privilege doctrine was not before the Tribunal. No authority was put before us to sustain it. The failure by the Tribunal to make that leap on the facts before them does not, in our judgment, give rise to any error of law.
If the instant case cannot be brought into any recognised category of public policy exception to the rule that relevant evidence should be admitted, can public policy considerations nevertheless justify exclusion in this particular case? Ms Sethi urged that the disputed evidence should not be admitted because to do so would undermine the whole function of convening these particular hearings out of the public eye. It would be contrary to public policy if a person attending such a hearing could later introduce - at a public tribunal - an unauthorised recording of that hearing – most especially one revealing what had occurred after the parties had been invited to withdraw so that the panel conducting the hearing could adjudicate.
That submission attracts a natural sympathy from any judicial tribunal. It is always somewhat distasteful when a party seeks to introduce in legal proceedings evidence obtained otherwise than openly and fairly. But even "illegally" obtained evidence is sometimes admitted by force of the relevance of it to the issue in a case. We have therefore approached cautiously the notion that evidence might be excluded under this part of Ms Sethi's submissions. Although the employers' case was put on the basis that the Tribunal ought to have wholly disallowed the admission of the transcripts, we consider it appropriate to examine separately the case against admission of the two parts: (1) recordings of the "open hearings" and (2) recordings of the "deliberations".
As to the former, we are not prepared to hold that the Tribunal should have excluded – on public policy grounds - the recordings of the "open hearing" parts of the panels' proceedings in the instant case. It was always intended that there would be at least one written record of the "open hearing" parts of the proceedings in the form of the Minutes. In appearance they constitute what (but for Mr Thorogood's disputes as to their accuracy and adequacy) look like an almost verbatim record. Ms Sethi conceded, correctly, that there could have been no objection to Mrs Dogherty having had her own written record made during the course of the "open hearing" by a shorthand writer or by her own noting of the proceedings.
Notwithstanding that the background to the proceedings was incidents which had taken place in a school and concerning children (and for that reason the proceedings having been held in the absence of the public), it must have been understood by both the employers' representatives and by Mrs Dogherty that if either of them subsequently raised in litigation some issue with the conduct or result of those proceedings, the Minutes might be properly be referred-to as a record of what had occurred. If the employers' Minutes are disputed as to accuracy on a relevant issue, as they are in this case, we fail to see what "public policy" could shut-out the production in that litigation of any further or other note of the proceedings that Mrs Dogherty might have made herself or commissioned from, for example, a shorthand writer. By extention of reasoning, the transcriptions of her recordings are such a note. Although the making of a mechanical recording is not as obvious or open a method of obtaining a "script" of what occurred as the employment of a shorthand writer would have been, we can identify no basis of principle upon which this Tribunal might be said to have erred in not excluding the transcripts of the "open hearing" parts of the proceedings. The conclusions reached, and reasons given, in this paragraph and in paragraph 69 are again those of the majority (Mr Recorder Luba and Mr Lewis). For her part, Ms Tatlow does not accept that there is a valid analogy between the admission in evidence of notes openly taken by either of the parties and the admission of transcripts of clandestine and covert recordings. She would have held that the transcripts of such recordings of the "open hearings" ought also to have been ruled inadmissible by the Employment Tribunal on public policy grounds.
No doubt for the reasons set out by the majority, Ms Sethi "concentrated her fire" on the admission of the transcriptions of the "private deliberations". She submitted that there was an important public interest in the integrity of the private deliberations of a panel adjudicating on any matter of dispute - particularly where all parties to the dispute knew in advance that the adjudicating body would not only deliberate privately but would later promulgate a decision with reasons.
On this aspect, we are (not without hesitation on the part of the majority) unanimously persuaded that the employers are right. Important as the public policy is that a party to proceedings should be able to avail themselves of any relevant evidence, it seems to us that there is in the instant case a contrary and superior public policy dimension that arises. Here, the panel members invited all parties and witnesses before them to withdraw, expressly so that they might deliberate privately. All parties – including Mrs Dogherty and her representative – accepted that invitation without demur on the premise that by doing so they would disable themselves from having any record of what might be said. That will have been underscored by the requested absence of the Clerk at that point, making it clear that no note of the deliberations was being made. Likewise, those participating in the deliberations will have done so on the premise that no one of their number would then disclose or publish what had occurred during the private deliberations. Had one of the parties, or a witness, returned to the hearing-room whilst deliberations were underway, everyone involved would have understood that they would have been asked to leave and that discussion would have stopped whilst they were present.
In our judgment 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. How, otherwise, could a member of that body confidently expose for discussion a doubt concerning some evidence about which he or she was unsure? The failure to maintain respect for the privacy of "private deliberations" in this context would have the important consequences of (1) inhibiting open discussion between those engaged in the task of adjudicating and (2) giving rise to a good deal of potential satellite litigation based on "leaks" by particular members of the adjudicating body or from the clandestine or unauthorised recordings of such proceedings.
We are far from suggesting some new broad class of common-law public interest immunity in the law of evidence. Rather we confine ourselves to the particular circumstances of this case: a claim for unfair dismissal of an employee which raises issues as to the reasonableness of (and the conduct of) the procedures leading to that dismissal and the confirmation of it. More particularly, a case in which, in the course of those procedures, the employee has agreed in advance (with no suggestion of any prejudice or duress) to withdraw whilst the relevant panel deliberated in private, that panel having undertaken to give (and having subsequently given) full reasons for its decision. The balance between the conflicting public interests might well have fallen differently if the claim had been framed in terms of unlawful discrimination, where the decision was taken by a panel which gave no reasons for its decision, and where the inadvertent recording of private deliberations (or the clear account of one of the panel members participating in those deliberations) had produced the only evidence – and incontrovertible evidence – of such discrimination.
In our judgment (by a majority) the Employment Tribunal in the present case was right to permit Mrs Dogherty to put in evidence her transcriptions of the "open hearing" parts of the proceedings she attended but (in our unanimous view) it erred in law in not debarring Mrs Dogherty from making use of her recording and transcription of the Panel's private deliberations (as appearing, for example, at pages 181 – 201 of the Supplementary Appeal Bundle placed before us). Accordingly, we allow the appeal only to the extent of making that direction which the Tribunal should itself have made namely that: "Mrs Dogherty may not adduce in evidence in support of her claim the transcripts of the private deliberations of the panel members or any evidence derived from them."
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