Mrs Dogherty, a teaching assistant and school meals supervisor, appealed against her dismissal. She took an electronic recording device to hearings with the school governors. It malfunctioned and recorded their private deliberations. She wanted to use the recordings as evidence that her dismissal was unfair. The Employment Tribunal admitted the evidence. The EAT reversed that decision.

Why exclude it? The parts of the hearing where Mrs Dogherty were present were minuted for the respondent. The private deliberations were not minuted. The EAT noted that the first test for admissibility is relevance. Counsel had submitted that the minutes of the hearings were relevant evidence, but the transcripts of the electronic recordings of the open, minuted parts of the hearings were not relevant. The EAT rejected that submission.

The Employer also made an argument of procedural unfairness in that adequate disclosure of the recordings was made late, but the EAT found that the ET had acted within their discretion in refusing to exclude the evidence on that ground.

Counsel also submitted that the governors who sat on the disciplinary panel had had their Human Right to private life interfered with by the unauthorised recording. Again a difficult argument. Presumably it would mean that a defendant in a fraud case who had, in a private meeting, discussed the fraud with a colleague, could have an unauthorised recording of that meeting excluded on the ground that to admit it would breach his Human Rights. In the event the EAT discussed authorities which led them to reject the idea that Article had been infringed, and noted that authority to the effect that even if there had been a breach, that would not necessarily lead to exclusion of the evidence.

The submission that the recording had been unlawful bugging was abandoned before the EAT.

Which brings us to the interesting part, and the part on which the Employer succeeded in getting the recordings of the private deliberations (but not the open parts of the hearings) excluded. 'Public policy.' The ET had refused to exclude the evidence on public policy grounds, and stated that such an argument would need to be pursued at a higher level. The EAT considered the public policy question. The way in which a new head of public policy was created was, in my respectful submission, unsatisfactory. Ideally, there would have been more discussion of the issues before creating a new head of public policy, and it is to be hoped that the Court of Appeal will have an opportunity to look at the question.

It appears from the judgment that the whole policy issue was not argued in sufficient detail, given the importance of the step which the EAT took. The basis for the public policy which had been advanced was as follows. School governors are voluntary. If a recording of their deliberations at a disciplinary hearing is admissible in the ET, it could get into the press. If they fear their private deliberations could get into the press it will become hard to find anyone willing to the job. I find that argument hard to follow. When the disciplinary panel of school governors decides a dismissal is fair, and gives reasons, that implies some criticism of the person who is dismissed. Of course that can be uncomfortable for everyone involved. The argument that no one will be willing to serve on the panel, if their private statements might be revealed, implies that there are willing for their stated reasons for the dismissal to reach the press, but are likely to feel a need to influence disciplinary decisions with unstated reasons, which need to be kept secret. I suggest that if school governors were approaching disciplinary work in that way, it would lead to unfairness. The public policy argument goes the other way. Anything which deters a disciplinary panel from making a decision on the basis partly of stated reasons, and party on the basis of reasons they are anxious to keep secret, is a good thing.

I need not have dwelt on this argument, because the EAT did not. When they EAT turned to the public policy issue, they discussed at length the issue of judicial immunity from suit. They considered whether the members of a disciplinary panel were entitled to judicial immunity from suit. The EAT went on to point out that privilege (in the sense of the right to have evidence excluded) is different from immunity from suit. Reading between the lines, it seems that a lot of time was spent on argument on the question of judicial immunity because the term 'privilege' was applied to it. Privilege as an exclusionary rule of evidence is quite different. As far as I can see, there is no theoretical or practical relationship between privilege (absolute or qualified) which provides a defence to a an action for libel, negligence, or anything else, and on the other hand the kind of privilege which protects communications made in privileged contexts from being admitted as evidence. It is unfortunate that the same word, 'privilege,' is use for both of these concepts. The lexical confusion is compounded by the fact the word 'immunity' is also used both in the context of defence from suit, and (in the phrase 'public interest immunity') in the context of rules which can be used to exclude evidence.

There is nothing inherently wrong with the EAT's discussion of privilege in the sense of immunity from suit. The discussion may be relevant in some future case. The EAT saw, and stated, that the whole issue was not relevant to the present case, where the argument was for a new kind of privilege to exclude evidence. However, it may be that this long discussion of an irrelevant kind of privilege took away from the time and opportunity to examine the relevant arguments surrounding the development of a new head of public policy.

At this point I will reproduce a long quotation in which the EAT create this new head of public policy.

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.

One can see why the EAT may have felt this conclusion was fair. I have to say I see great deal wrong with this formulation. With the greatest respect to everyone involved, the problems appear to arise not from any lack of skill on the part of the tribunal, but from the fact that the core public policy argument which forms the basis of the decision was not canvassed in anything like enough detail.

I will list briefly points which spring to mind which have not been dealt with adequately here. It is quite possible that if these points had been dealt with the result would have been the same, but they should have been considered. First, EAT are careful to restrict the decision to the facts of the case. They say they are not creating a new common law head of public interest immunity. The extent to which it the decision affects the common law will of course depend on how far courts not bound by it are, nevertheless find it persuasive. Cleary the EAT have created a new rule of evidence which is binding in the Employment Tribunal.

Of course, the EAT say the decision is specific to the facts of the case. However, it does create a new head of pubic interest in the law of evidence as it relates to the ET. What is case-specific is the way in the which this newly defined public interest in the privacy of deliberations is to be balanced against the public interest in ensuring a fair trial by placing all available and relevant evidence before the tribunal.

Having created a new basis for excluding evidence, the EAT suggest some ways in which the balancing exercise might be performed. They suggest that the result of the balancing exercise might have gone the other way (a) if it were a discrimination case, and (b) provided the unauthorised recording was inadvertent. Point (b) relates the 'ground rules' theory, which I return to. But why is a discrimination case different? In a non-discrimination case the employee may be saying the employer is being unfair perhaps because the employee dislikes the applicant for some unspecified reason. In a discrimination case the argument is perhaps the employee is being unfair perhaps because they dislike the applicant for some identifiable reason, such as race. Why should these two situations attract a different approach to the admission of evidence?

That brings me to a further criticism. There is already a long tradition for performing this kind of balancing exercise when a challenge is made to without prejudice privilege. Supposing the EAT were right to create this new head of privilege, it is analogous in some ways to without prejudice privilege. I suggest that it was a mistake not to take into account the well developed case law for setting aside without prejudice privilege. In that context, they key point is that without prejudice privilege can be set aside on the ground of unambiguous impropriety. That might be a sensible approach to this type of case: asking whether a clandestine recording of private deliberations revealed unambiguous impropriety would be a far better basis for performing the balancing exercise. Similarly, legal professional privilege can be challenged on the grounds that it is being used to cloak wrongdoing. Similarly the law relating to disclosures of events in a jury room might be relevant. To give a famous example, I should have thought that evidence of the use of ouija board by a disciplinary panel to reach their decision should be able to be placed before a judge, and admitted. In that situation it is neither here nor there whether the case is a discrimination case, perhaps, but not in other unfair dismissal cases, and the issue of admissibility should not fall at that first hurdle before the nature of evidence, and the gravity of the complaint which it relates to, have been considered.

The EAT founds its view of the public policy on the idea that it is important for the parties to observe 'ground rules' in the way disciplinary decisions are reached. This also raises problems. Why are the ground rules there, and who sets them and decides what they are? Clearly they are not set, in most cases, through meaningful agreement between the parties. And what should be the effect of breaking them? The EAT should have taken into account the way English law deals with privilege. To think that a court should refuse to hear evidence from stolen, once privileged, documents, is a misunderstanding. Legal professional privilege, where the rules are analogous, is a privilege to refuse to disclose documents. It is not a privilege to prevent those documents from being placed before the court. It would be unprofessional to read a privileged document which you should not have seen, if you are a lawyer. But it is contrary to English law to create out of that privilege a rule of evidence excluding material improperly obtained. It may be however, that the law in this area has been changed by Human Rights law on a fair trial.

However, the fact that improperly obtained evidence is normally admissible should have been more in the minds of the tribunal. The Crown Court sometimes admits evidence obtained by the police in flagrant breach of 'ground rules', and even unlawfully, and even where a defendant's liberty is at stake. It shows unwitting bias in favour of powerful institutions and against 'the little man' (or woman) if the law admits evidence gathered by the police in flagrant breach of the ground rules which it is their profession to understand (and does so in criminal case where strict rules of evidence are all the more important) yet excludes a tape recording made by a dinner lady which accidentally caught some private deliberations.

Dr John Birchall - Professional English, Legal English, and Common Law Training