Where proceedings in the Employment Tribunal are recorded, EAT rules that a party can apply for a transcript of the recording.

Summary.

In Kumar v MES Environmental Limited [2022] 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).

 

The Facts.

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.

The Appellant was represented before the EAT by Ryan Ross, of Farrar’s Building acting pro bono via Advocate.

On appeal, HHJ Auerbach held that:

1. Most EAT appeals will not require access to the transcript of proceedings. But in two categories of proceedings this might not be the case – appeals on grounds of perversity or procedural irregularity.
2. The Employment Judge’s note of the proceedings remains the official record of what was said by relevant parties. But it is hardly surprising that the ET Rules of Procedure – last updated in 2013 – contain no reference to audio-recordings as ET hearings have rarely been recorded until recently.
3. However, an absence in the ET Rules to audio-recordings does not mean that a party cannot request a transcript. A party can make such a request. It would be better if the ET Rules or some other Practice Direction made this clear.
4. Just because a party obtains a transcript of proceedings, this does not mean they are entitled to place the entirety of the transcript before the EAT.
5. Where the proceedings in the ET have been recorded, a party should in principle, subjecting to paying the appropriate fee, be able to apply for a transcript. Generally speaking, such requests should be processed administratively, without judicial input, unless there is a concern that some aspect of the transcript should be refused or restricted (e.g., the proceedings were in private).
6. However, this principle should be caveated. A party is not permitted to request a transcript of any oral reasons given by a Tribunal. Those should be requested by way of written reasons pursuant to Rule 62 of the ET Rules.
7. Finally, the right to apply for a transcript applies to just that – the transcript. There remains no right by a party to obtain the original recording.

 

Commentary.

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 [2020] 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.

 

Lucie Danti is a Pupil Barrister at Farrar’s Building. Ryan Ross acted for the successful Appellant.

 

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