Guidance issued on Recording Employment Tribunal proceedings

The Presidents of Employment Tribunals in England and Wales and in Scotland have published a joint Practice Direction and Presidential Guidance on the recording of Employment Tribunal hearings and the transcription of such recordings.

The two documents take effect from 20 November 2023.

The Presidential Guidance states at paragraph 4 that, with the agreement of HMCTS (but subject to paragraph 5 below), audio recordings will henceforth be made of all Employment Tribunal hearings. This is so whether they are preliminary hearings or full hearings, or hearings for case management, remedy, costs (expenses in Scotland) or reconsideration, and whether they are held in public or private, and whether they are held in person or remotely (or a hybrid combination). There are only two exceptions: hearings held under rules 3 and 53(1)(e) of the ET Rules (i.e., for the purposes of judicial mediation and other alternative dispute resolution) and hearings where there is an order in place under rule 94 (i.e., in the interests of national security).

However, the exceptions set out in paragraph 5 of the Presidential Guidance are wide. HMCTS will only make audio recordings where the technical facility exists to do so and where the recording can be securely retained. This ‘technical’ issue effectively means that remote hearings by BT MeetMe conferencing service, CVP and/or the Video Hearings service (“VH”) will be recorded because there is a technical facility in each platform to record the hearing and the resulting audio recordings can be securely retained. However, when it comes to ‘in person’ hearings, these can only be recorded where suitable equipment is installed in hearing rooms and audio recordings of in-person hearings can only be transcribed properly where there is a suitable array of microphones capable of identifying different speakers at the main locations in the room. At present, there are some Employment Tribunal venues in England and Wales where, because of co-location with court jurisdictions, the Employment Tribunals can use courtrooms with an existing digital audio recording system installed. These are currently Bristol, Southampton, Mold, Sheffield, Newcastle, Hull and Liverpool, and one hearing room in Birmingham. However, most hearing rooms used by the Employment Tribunals have no formal recording equipment installed. HMCTS has agreed to investigate adopting an approach whereby in person hearings “join” a Cloud Video Platform (“CVP”) room to act as a proxy recording device, but only where sufficient microphones are available and there is an accompanying screen and camera.

By the Practice Direction, any party, representative, witness or member of the press or public who wishes to obtain a transcript of the whole or any part of an audio recording of a tribunal hearing (save for the part where an oral judgment and reasons were delivered) must do so by completing the form produced by HMCTS for this purpose, which is Form EX1076.

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Authors

Daniel Hobbs

Call 1998

Related areas

Employment

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