In Kumar v MES Environmental Limited  EAT 60, the EAT (HHJ Auerbach) determined that, where proceedings in the Employment Tribunal are recorded, a party can apply for a transcript of the recording using Court Form EX107 (subject to paying the appropriate fee), save that a party is not entitled to a transcript of the ET’s judgment (that being covered by a request for written reasons under Rule 62 of the ET Rules of Procedure).
Mr Kumar (‘the Appellant’) brought complaints of direct race discrimination and victimisation in the Employment Tribunal in Birmingham. There was a full hearing lasting four days. The claim was unsuccessful. The Tribunal gave an oral decision on the final day of the hearing. The Appellant’s Counsel requested written reasons, which were later provided.
The entirety of the proceedings had been recorded, and the Appellant made a separate application via Form EX107 for a transcript of the recording. The Employment Judge refused his application, ruling that there was no provision in the ET Rules of Procedure for a party to apply for a transcript and that Form EX107 was a form for use in the County Courts.
The EAT’s Decision.
On appeal, HHJ Auerbach held that:
Given the rise of CVP (and, with it, audio-recording of proceedings), this judgment brings welcome clarification to ET procedure.
It remains to be seen whether someone who is not party to the proceedings (e.g., a member of the press) can apply to the Employment Tribunal for a transcript of the audio-recording. This is something apparently envisaged in Form EX107 and CPR 39. The EAT did not address the position of non-parties, but it must surely follow that they should also be permitted to apply for a transcript.
Finally, HHJ Auerbach shrewdly avoided commenting on a scenario where the Judge’s note of evidence – which remains the best record of the proceedings – is later contradicted by the transcript of the audio-recording. Such a scenario was briefly alluded to by the EAT in Heal v University of Oxford  ICR 1294, where Choudhury P noted that the Judge’s note remains the official record of a hearing, at least until digital recording becomes more widespread in the Employment Tribunal. One wonders how tenable this position remains if audio-recording in the Employment Tribunal continues to grow. It remains to be seen whether the Judge’s note can still be thought of as the definitive account of proceedings if an audio-recording is also available.
For the EAT’s determination, please see here.