The Facts
The stated aim is for all hearings to be recorded whether they are held in public or private and whether they are held in person or remotely. The limited exceptions are that HMCTS will not make recordings of hearings relating to alternative dispute resolution (such as judicial or other mediation), preliminary hearings that explore settlement (and presumably parts of any hearing where settlement is addressed) or National Security proceedings.
As most hearing rooms used by employment tribunals have no formal recording equipment installed recording is initially likely to take place for full or partial remote hearings. HMCTS will record hearings held using the BT MeetMe conferencing service, Cloud Video Platform (CVP) and/or the Video Hearings Service. Where Microsoft Teams is used as a back-up platform, HMCTS will not record these hearings because those recordings cannot be securely retained. It remains the case that parties or observers may not record a hearing without the permission of the tribunal.
For in-person hearings, the Guidance notes that in some employment tribunal venues in England and Wales where, because of co-location with court jurisdictions, there is an existing digital audio recording system installed (and which will be used if available). These are Bristol, Southampton, Mold, Sheffield, Newcastle, Hull and Liverpool, and one hearing room in Birmingham. One solution for in-person hearings would be to ‘join’ a CVP room to an in-person hearing to act as a proxy recording device, where sufficient microphones are available and there is an accompanying screen and camera.
Where a recording has been made, it will constitute the record of proceedings. Where a recording has not been made, the employment judge's notes will constitute the record of proceedings. The recording can be used by a tribunal when preparing its judgment or for any purpose connected to the performance of their judicial duties. It will not be possible to apply for a copy of any recording. There are limited circumstances when a party or representative will be permitted to listen to all or part of the recording of a hearing namely where this is necessary in the interests of justice to ensure the effective participation of a vulnerable party or witness or by way of reasonable adjustment for a person with a disability. An application for such permission must be made within six months of the final date of the hearing. The Presidential Guidance states that, where permission is granted, the party (or representative) will ordinarily be expected to listen to the recording under supervision on HMCTS premises.
There will be a transcript of the recording, but this will not include any oral judgment or reasons given at the hearing. The written judgment of the tribunal (including any written reasons provided) is the definitive expression of the tribunal's judgment, and accordingly if a party wishes to request written reasons for a judgment given orally, they must do so by requesting them in accordance with rule 62(3) of the Employment Tribunal Rules and not by requesting a transcript of any recording. The Practice Direction provides that anyone can apply to obtain a transcript within six months of the final date of the relevant hearing. A non-party, including the press or a member of the public, can only request a transcript for a hearing held in public. Ordinarily, there is a charge for the transcript. However, a party or representative may ask for the charge to be waived if it is necessary in the interests of justice to ensure the effective participation of a vulnerable party or witness or by way of reasonable adjustment for a person with a disability. A request for a transcript will not by itself alter any tribunal time limit.
Transcripts will not be subject to any check, verification or approval by an employment judge or any non-legal member prior to their release. This is perhaps why, where a transcript has been produced, it is not the record of proceedings. However, a member of HMCTS administrative staff or a legal officer may review and amend the transcript before it is released for two limited purposes: to ensure that the transcript is of the hearing itself and not of parts immune from disclosure; or (where it has been requested by a non-party) to ensure that the transcript is of the public parts of the hearing only and/or to ensure compliance with any privacy or restricted reporting order.
The Practice Direction makes it clear that misuse of a transcript may constitute unreasonable behaviour for the purposes of strike-out and costs, an offence under the Employment Tribunals Act 1996 (i.e. in cases where publicity has been restricted) and/or contempt. The Presidential Guidance provides examples of what may constitute misuse by a party (or representative): forwarding a transcript of a hearing that was held in private to someone who was not entitled to be present; forwarding a transcript that identifies any individual in respect of whom an anonymisation order was made; and publishing an altered or misleading version of the transcript, including by placing it online or on social media.
What does this mean for employers?
This is a significant development and while it may take some time for it to become the norm for in person tribunal hearings to be recorded this change affects any organisation with an upcoming remote hearing.
Witnesses will need to be told that their evidence may be recorded. While this should not change any evidence, which needs to be truthful and accurate in any event, the fact a recording is taking place may create additional anxiety for the witnesses which will need to be managed carefully.
While the transcript may well be useful for the parties to provide clarity over what was said at the hearing, the downside is that there might be additional press interest arising from a result of a review of a transcript. Whether this is the case remains to be seen.
