The consequences of recording privileged conversations

In an unusual turn of events, four people have had their claims of race discrimination thrown out and costs awarded against them after they were found to have secretly recorded a privileged conversation between the employer and lawyers.

The four individuals had brought claims of race discrimination against Brighton University Hospitals NHS Foundation Trust (Zia and others v Brighton University Hospitals NHS Foundation Trust ET/2301120/2014).

The claimants were invited to a ‘without prejudice’ meeting with the chief executive of the trust and the trust’s lawyers before the Tribunal hearing began. At the end of the meeting, the claimants and their legal representative left the meeting room and the chief executive and his lawyers had a conversation about the case that was confidential in nature – or so they thought.

Soon after the meeting had taken place, the chief executive and lawyers were sent an anonymous recording and transcript of the conversation.

It was clear from the nature of the recording that it had been started just before the ‘without prejudice’ meeting ended and the claimants left the room. The Employment Tribunal was informed of the development.

The Tribunal said that the claimants had placed the recording device in the room before they left and had sent the recording and transcript to the employer to put pressure on them to settle the case in the claimants’ favour. This action effectively ruled out the possibility of a fair hearing.

Since the contents of the conversation between the employer and its solicitors were privileged and confidential, the actions of the claimants had violated this principle and given them an unfair advantage.

It can only be imagined what might have happened if the claimants had kept quiet about the recording and had gone on to use the information in the Tribunal itself. That they ‘shot their bolt’ early worked to the employer’s advantage.

All four claimants had their cases struck out.

The tribunal went on to say that because of the covert way in which the recording had been carried out and the implied collective responsibility of all four claimants for recording and distributing the privileged information, they had acted in a “vexatious, abusive, disruptive or otherwise unreasonable” fashion. An award of costs was made against them of £17,371 each, or a total of £69,484. A costly error of judgement indeed.

What is ‘without prejudice’?

This means that if the parties are trying to resolve a dispute, any discussions that they have in order to do so are inadmissible in any subsequent court or Tribunal proceedings.

If an employer involved in a dispute with an employee wants to terminate that relationship with an offer of settlement, they are likely to use a ‘without prejudice’ meeting in order to do so.

If meetings or discussions are held that are not “without prejudice” it could cause problems for employers because a settlement offer could be held up by the employee as an admission of culpability. In addition, if there is a disciplinary or performance management process simultaneously ongoing and the employer offers a settlement to truncate it, the employee may cite the offer as evidence that the employer was never really interested in completing the procedure, resign and claim constructive dismissal.

The decision by the tribunal defends the absolute right for legal professional privilege to be protected.

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