Chairman and Governors of Amwell View School v Dogherty

EAT: Mr Recorder Luba QC, Mr G Lewis and Ms P Tatlow: 15 September 2006

The claimant, a teaching assistant at the respondent school, was disciplined for alleged misconduct. A disciplinary hearing and subsequent appeal took place before a panel of school governors taking the form of open sessions attended by the parties, their representatives and their witnesses, but not open to the public, and periods during which everyone left the room while the panel deliberated in private. The clerk to the governors took minutes recording the open sessions but left during the private deliberations. The claimant secretly recorded the proceedings electronically, and, on one day, left the recording device switched on when the parties withdrew while the panel deliberated. The claimant was dismissed and brought a complaint of unfair dismissal, claiming that she had been unfairly treated during the disciplinary and appeal process. At the hearing of the complaint the employers objected when the claimant sought to produce in evidence the recordings, or transcriptions, she had made of the disciplinary proceedings. The tribunal decided that the recordings were probative and could be admitted.

The employers appealed, contending, inter alia, that the admission of the recordings infringed the governors' right to privacy under article 8 of the European Convention on Human Rights.

The Employment Appeal Tribunal held:
(1) As the conduct of the disciplinary proceedings was in issue in relation to the fairness or otherwise of the claimant's dismissal, the material contained in the recordings was relevant and should be admitted unless there was a basis for its exclusion. No such basis was to be found in any right to privacy on the part of the governors, who while undertaking such voluntary work put themselves into the public domain and could not be considered to be retaining a right to personal privacy in relation to their participation in that function, and, in any event, there was no evidence of any likely or potential interference with the private life of any of the governors. Further, under article 8(2) of the Convention a tribunal might properly admit relevant evidence, even where gathered in breach of an article 8 right to privacy, where to do so was necessary for a fair hearing.

(2) The case could not be brought into any recognised category of public policy exception to the rule that relevant evidence should be admitted, in particular the principle of judicial privilege had no application, as there was no evidence that the school governors were conducting judicial or quasi-judicial proceedings and the privilege was not being invoked to provide immunity from suit to those taking part in proceedings. But there was an important public interest in parties at disciplinary proceedings complying with the ground rules on which the proceedings were based, including where an employee had agreed in advance to withdraw while a disciplinary panel deliberated in private, to ensure a full and frank exchange of views between its members, the panel having undertaken to give full reasons for its decision. Accordingly, the tribunal ought to have directed that the claimant could not adduce in evidence in support of her claim her recording and transcription of the panel's private deliberations.

Appeal allowed in part.

Appearances: Natasha Sethi (County Secretary, Hertfordshire County Council) for the employers; J Thorogood, representative, for the claimant.