Recording tribunal hearings: a new chapter in legal transparency?
The Presidents of the Employment Tribunals in England and Wales and in Scotland have recently issued a joint Practice Direction on the recording of Employment Tribunal hearings. This sets out that, with effect from 20 November 2023, audio recordings will be made of all Employment Tribunal hearings (where the technical facility exists and where the recording can be securely retained).
The Presidential Guidance can be found here.
Will all hearings be recorded?
All hearings will be recorded (whether it is a preliminary or final hearing, in public or in private) with only two exceptions:
- hearings for judicial mediation or other ADR; and
- hearings in national security proceedings.
These will not be recorded.
When will this start?
From Monday 20 November. However, most hearings rooms used by the Employment Tribunal don't have any formal recording equipment installed and it will take time to install these. Currently, only a few centres have the ability to record hearings. These are: Bristol, Southampton, Mold, Sheffield, Newcastle, Hull, Liverpool and one room at Birmingham.
HMCTS are currently investigating the use of CVP as a recording device for in person hearings (along with other options), where there is no recording equipment installed.
What about remote hearings?
These will be recorded if they take place via BT MeetMe conferencing or CVP and/or the Video Hearings (VH) service. For any hearings which take place on Microsoft Teams (which is used as a backup platform to CVP or VH) recordings will not be made (as they cannot currently be securely retained). Therefore, if you are participating in a remote hearing (which is by CVP as most are) it will be recorded.
Are the parties automatically given a copy of the transcript?
No. You need to ask for the transcript within six months of the final date of the hearing, using Form EX107 (produced by HMCTS) and paying the fee. There are some limited circumstances where the transcript may be provided “at public expense”. Further details can be found in the guidance which accompanies Form EX107 here.
Of note, is that a party or their representative can request the transcript without notifying/copying in the other side. This departs from the general rule in Employment Tribunal matters that correspondence to the Tribunal, must be copied to the other side.
Are there any issues we need to think about before attending a hearing?
Yes. This may be a relevant consideration for parties at case management, when identifying the most appropriate forum for the hearing (particularly where the Claimant is a litigant in person and the risk of confusion as to what has been said during a hearing, is perhaps greater).
It will be interesting to see if there is a rise in the number of hearings taking place by CVP because recordings will be available.
Our view
This is a positive step and should help to avoid disputes as to what has taken place during a hearing. It will likely save time and expense in resolving any such issues as the transcript will be a full and final record of exactly what was said at the hearing.
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About Hannah
Hannah is an associate in our employment team specialising in tribunal advocacy. Please let Hannah know if you have any queries about tribunal recordings, or any other employment law matters.
