When should an employment tribunal allow litigants to record proceedings?
Hardly ever, and only then under strict limits, held the EAT in Heal v University of Oxford.
The Claimant said his disabilities, which included dyslexia and dyspraxia, made it difficult for him to make a contemporaneous note of proceedings, and asked for permission to record his tribunal hearing. The tribunal directed the application to record proceedings be made at a case management preliminary hearing, and the Claimant appealed on the ground that it ought to have been decided before the preliminary hearing. In dismissing the appeal, the EAT set out the following considerations at paragraph 49.
(a) under the Contempt of Court Act 1981, a tribunal has a discretion to allow a litigant to record proceedings.
(b) however, such permission should normally only be granted if there is a complete or partial inability to take contemporaneous notes, and that results in a substantial disadvantage to the litigant.
(c) even when permission is granted, it remains a criminal offence to publish that recording (and unlike the act of recording, courts are not allowed to give permission to publish)
(d) the tribunal's notes of evidence remain the conclusive record of the hearing (although that might change when official digitial recording of proceedings becomes routine).
(e) one possible adjustment for a person in the Claimant's position is to allow time at the end of each witness's evidence for the recording to be played back, to allow the litigant to formulate his questions and/or submissions.
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