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The recording of disciplinary proceedings: Amwell View School v Dogherty [2006] UKEAT 0243 06 1509

All but the most informal tribunals have some arrangement for recording their proceedings. This may take the form of written minutes or a mechanical recording. Both must be subject to challenge and correction by the parties, if inaccurate. For this reason the Employment Appeal Tribunal upheld the decision of a school disciplinary tribunal to admit for the purposes of correcting the manual record those parts of a surreptitious audio recording of where a party made by a party so far as it dealt with the ‘open’ part of the proceedings.

However, in Amwell View School v Dogherty the EAT held that the tribunal erred in law in not debarring the party from making use of her recording and transcription of the panel's private deliberations. Mr Recorder Luba QC added, ‘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.’


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