The claimant indicated that he had a disability in his ET1 and requested some adjustments including permission to use a recording device as he said his conditions made it difficult for him to take contemporaneous notes. The employment tribunal indicated that the application should be at a Preliminary Hearing. The claimant appealed on the grounds that he should not have to make an application, that the tribunal erred in failing to consider the matter before the preliminary hearing and in failing to consider that the claimant would be in contempt of court if he attempted to bring a recording device into the building before permission was granted to do so.
The Employment Appeal Tribunal dismissed the appeal. It held that the tribunal was entitled to deal with the application at a hearing rather than on the papers. There was no error of law in not considering the matter in advance of the hearing although the tribunal had not precluded that course in any event.
The EAT gave the following guidance on when parties might be permitted to make an audio recording of proceedings:
- Permission to record proceedings is unlikely to be granted on a routine or regular basis. Each case will have to be determined on its own facts. However, it seems very unlikely that permission would be granted where the applicant fails to demonstrate that, for reasons related to a disability or medical condition: there is a complete or partial inability to take contemporaneous notes; and such inability will result, in the circumstances of the particular case, in a substantial disadvantage.
- The risk that a recording will be used for purposes other than that for which leave is granted can be mitigated by the tribunal issuing strict limitations on other use. If a recording is permitted simply to relieve a person of the burden of taking notes, then that recording will generally have no greater status in proceedings than that of any other set of notes. In particular, Tribunals will no doubt wish to remind parties that the restriction under the Contempt of Court Act 1981, s 9(1)(b) on publishing a recording by playing it in the hearing of the public would also apply to the posting of any recording or extract thereof online.
- The tribunal’s notes of evidence will continue to be the conclusive record of the hearing before it, certainly whilst it remains the position that employment tribunal proceedings are not routinely the subject of official digital recording. The fact that a tribunal has consented to a recording being made by a party, and the undisputed content of that recording appears to conflict with the tribunal’s written notes of evidence, would not mean that the recording automatically takes precedence. Whether or not it should take precedence in respect of any issue will be a matter for the tribunal to determine having regard to all the circumstances.
Claire Darwin was involved in this case.
Heal v The Chancellor, Master and Scholars of the University of Oxford & Ors UKEAT/0070/19/DAhttps://www.matrixlaw.co.uk/?attachment_id=10602