Although tribunals have a lot of discretion when deciding whether to allow proceedings to be recorded, the Employment Appeal Tribunal (EAT) held in Heal v The Chancellor, Master and Scholars of the University of Oxford and ors said that claimants still have to show a complete or partial inability to take contemporaneous notes that would result in a substantial disadvantage to them.
Dr Heal suffered from a number of disabilities. These included dyslexia, affecting his ability to read and write, as well as dyspraxia, which affected his ability to take contemporaneous notes. He also had irritable and inflammatory bowel condition, which was exacerbated by stress and anxiety.
In the process of lodging a number of complaints of discrimination and victimisation against various colleges of the University of Oxford, Dr Heal indicated on the ET1 form that he wanted to make use of a recording device during the hearing because he had a disability. However, he did not explain why he needed that adjustment, nor how it might help.
The tribunal held that there should be a preliminary hearing to undertake management of the case, including the decision about whether he should be allowed to record the proceedings. Dr Heal asked for that decision to be reconsidered.
However, the second employment judge felt that the decision was fair and that it would give Dr Heal the chance to explain to the judge at the hearing why the adjustment was reasonable.
Dr Heal then appealed against both those decisions, arguing among other things, that the tribunal:
- should have relied on the Equality Act 2010 and the Human Rights Act 1998, rather than tribunal rules.
- was wrong to require him to make an application for reasonable adjustments, separate from his ET1 form.
- should have decided the question of adjustment in advance of the hearing.
The EAT held firstly that, although there is a duty on tribunals to make reasonable adjustments, it did not arise from the terms of the 2010 Act. In any event, as the kind of adjustment that Dr Heal had asked for related to the way in which the hearing would be conducted, it was clearly a matter that needed to be decided in conjunction with case management rules.
Nor was the tribunal wrong to require Dr Heal to make an application for reasonable adjustments. Although tribunals have a broad discretion to allow recording devices, they still needed to consider in each case whether there was a reasonable need for proceedings to be recorded, or whether the claimed disadvantage would be alleviated by the use of a recording device. As lots of self-represented litigants might struggle to take notes, tribunals would be unlikely to accept that a slight limitation would automatically lead them to allow a claimant to use a recording device.
Finally, the EAT held that, to allow the decision to be made in advance of the hearing Dr Heal had been asked to provide further information. The tribunal had not therefore failed to determine the question of adjustments before the hearing but rather that Dr Heal had failed to provide the material requested.
The EAT concluded by noting that it would not be appropriate to limit the broad discretion enjoyed by tribunals in terms of deciding whether litigants could record a hearing. Although each case has to be decided on its own facts, the EAT noted that it would be unlikely that permission would be granted for reasons related to a disability unless the claimant could show a complete or partial inability to take contemporaneous notes that would result in a substantial disadvantage.
A tribunal will very rarely agree to the recording of proceedings and if so with stringent conditions attached. Even in the unlikely event that permission is granted, any publication or playing of the recording in public could amount to contempt.