25 April 2022

Employment tribunal procedure - hearing transcripts

Oliver Tasker Partner & Head of Employment

The Civil Procedure Rules say that High Court and County Court hearings will be audio-recorded unless the judge directs otherwise.

A person can apply for a transcript of civil proceedings if they pay a fee and complete a form. These rules don’t apply to employment tribunal proceedings, which are not routinely recorded. The Employment Tribunal rules (contained in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013) are silent on both recording hearings and applications for transcripts. The EAT has looked at a case where a recording of an employment tribunal hearing was made but the tribunal refused to give the losing party a transcript of the proceedings.

In Kumar v MES Environmental, the employee brought discrimination claims which were heard over four days. He lost his claims and applied for written reasons. He also followed the CPR process for requesting a transcript of the proceedings. The employment judge refused to provide a transcript because the tribunal rules did not provide for it. The employee made a data subject access request under the Data Protection Act 2018 to get copies of the notes made by the panel at the hearing and a copy of the audio recording. The request was refused because the data was exempt from being part of a subject access request if there was another way of getting it - in this case, via the CPR process. The employee appealed.

The EAT considered the position with regards to appeals, which can be made either on a point of law or on the grounds that the decision was perverse. The EAT said that if an appeal centres around a procedural irregularity or perversity, it might be helpful to have a transcript of proceedings as well as the written reasons. The EAT rules allow the EAT to ask for copies of an employment tribunal judge’s notes or an agreed note of evidence if that is needed to deal with the appeal, precisely because there is not usually a transcript available. The tribunal rules are silent on recordings because hearings are not routinely recorded, but that doesn’t mean that the intention was to deny parties access to a transcript where one was available. Where there is a recording, the EAT said that a party should be able to get a copy by the CPR route, without any input from a judge. After that, if a party wanted to rely on its content to support an appeal, they would need to seek permission from the EAT and explain why it was necessary for the fair disposal of the appeal.

This decision confirms that the position on access to transcripts is the same in employment tribunals as it is in the civil courts if the hearing is recorded.  Campaigners are calling for employment tribunal proceedings to be recorded in order to improve fairness and transparency. However, most employment tribunal hearings still take place in premises without recording facilities. The Senior President of Tribunals has encouraged the use of recording facilities where premises allow, and also suggested that the tribunal service is considering the routine recording of video hearings. Discussions about the digital recording of tribunal hearings have been around now for a number of years, but significant financial investment will be needed in order to make audio recording of tribunal hearings the norm in the digital age.

Any questions?

Contact Oliver at oliver.tasker@wilkinchapman.co.uk to discuss

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