Setting the record straight? Calls for changes to the approach to recording hearings

In March this year, a letter with over 300 signatories led by journalists David Hencke and Phillip Whiteley, was sent to three top employment judges in the UK (Sir Keith Lindblom, Judge Barry Clarke and Judge Shona Simon) seeking reform to allow employment tribunal proceedings in England and Wales to be recorded and transcripts produced. 

The current approach in England and Wales

Currently in England and Wales, most tribunal proceedings are not recorded. There is no requirement for official recordings or transcripts to be made of employment tribunal proceedings and any person who attempts to make a recording or transcript without the express permission of the tribunal faces charges for contempt of court. 

Employment judges’ notes of evidence are regarded as the official record of proceedings. While parties can request that they are made available to the Employment Appeal Tribunal, where necessary to argue a point of law, the EAT Practice Direction makes clear that they are not to be requested purely because a party has not kept their own notes of the evidence. The only public record of the hearing is the judgment itself, meaning that if this does not reference some of the evidence raised during the hearing, there is no official record that the evidence was ever given. 

However, in the recent EAT decision in Kumar v MES Environmental Limited [2022] EAT 60, the EAT determined that where proceedings are recorded (as sometimes now occurs following the pandemic), parties can apply for a transcript of that recording, subject to paying a fee. This is despite the rules, somewhat unsurprisingly, being silent on audio-recordings. However, the EAT was clear that this does not extend to a transcript of the tribunal’s delivery of the oral reasons, a record of which should instead be provided following a request for written reasons.

In contrast in Scotland, a pilot scheme aimed at ensuring all hearings were digitally recorded to facilitate open justice was introduced in 2019. While the progress of the pilot is unclear, the Practice Direction and Practical Guidance on remote hearings issued by the President of the Employment Tribunals (Scotland) in 2020 confirm that where a hearing is remote and heard in public, it will normally be recorded in Scotland.

The position on recording tribunal hearings in England and Wales is also in stark contrast to the longstanding approach in the High Court or County Court, where Civil Procedure Rule 39.9 requires all hearings to be taped or digitally recorded unless the judge directs otherwise, and any party or other person can request a transcript of the recording to be supplied to them (subject to paying a fee). 

The rationale for the campaign

When the campaign was launched, David Hencke explained that the calls for reform had been prompted by a series of judgments against whistleblowers (involving issues such as hospital and patient safety, bullying, harassment and discrimination) “where the judgement itself ignores or twists facts and where the whistleblower – often but not always a litigant in person – has to defend himself or herself against big battalion lawyers brought in by employers.” 

The campaign criticises the imbalance that can be created by the current regime; according to campaigners, defendant employers often have sufficient resources at their disposal to engage a note-taker, whereas employees often represent themselves and are therefore unable to take detailed and accurate notes. Even where employees are separately represented, campaigners note that they are unlikely to have the resources to engage someone specifically for these purposes. Campaigners believe that this could put employees at a significant disadvantage, particularly if a decision is appealed. The letter argues that this imbalance runs contrary to the principle of a fair trial, as enshrined in the European Convention on Human Rights, if only one side of proceedings can afford to take an accurate record. 

Response to the campaign

A response sent by Sir Keith Lindbolm’s secretary on his behalf in April acknowledged that where tribunals have access to recording equipment installed for other courts, "its use is encouraged". The response also stated that consideration was being given by the Presidents of the Employment Tribunals to virtual hearings being recorded, where there is an inbuilt facility to do so. No further information has been provided to date. 

If introduced, this change would likely be regarded as a step in the right direction by the campaigners but clearly falls far short of their stated objective of all hearings being recorded. Indeed, the majority of final hearings continue to be dealt with in person, while virtual hearings are more commonly used for preliminary or interlocutory matters where the need to refer back to a detailed record of proceedings will be less common. Further, if the objective of the campaign is to ensure a fair trial for all, a discrepancy between virtual and in-person hearings could create further concern. 

However, with employment tribunals already struggling with a lack of resources and a severe backlog of cases (which reached an all-time high as a result of the pandemic), it is clear that any move to require all hearings to be recorded and transcripts produced would place further strain on the system and could lead to further delays. This would be a particular risk if the regime allowed non-parties to also request transcripts (as under CPR 39.9). 

Overall, it remains to be seen how the Presidents of the Tribunals will respond to the campaign, and what tangible impact this will have for claimants.