Historically, employment tribunal hearings have not been recorded, unlike hearings in the High Court or County Court. However, in Kumar v MES Environmental Ltd, the Employment Appeal Tribunal (EAT) held that if a hearing has been recorded, the parties are entitled to a transcript, despite the fact that the rules are silent on the issue.
Basic facts
Following an unsuccessful job application, Mr Kumar brought claims of direct race discrimination and victimisation.
Tribunal decision
At the end of the full merits hearing, which took place from 24 to 27 February 2020 and was audio-recorded, the tribunal gave an oral decision dismissing both his claims. Mr Kumar’s counsel then asked the tribunal to provide written reasons for that decision which were provided on 21 May.
In the interim, Mr Kumar applied to the tribunal on 29 February for a transcript of the audio recording of the hearing. The tribunal replied to him on 26 May saying that he was not legally entitled to a transcript. He was referred to Rule 62 of the Employment Tribunals (Rules of Procedure Regulations) 2013 which set out his right to ask for written reasons which had, of course, already been provided.
On 29 May, he asked for a reconsideration of that decision, based on Rule 39.9(3) of the Civil Procedure Rules 1998 which states that, having paid the relevant fee: “Any party or person may require a transcript or transcripts of the recording of any hearing to be supplied to them”.
On 11 June 2020, the employment tribunal sent out the judgment and reasons for refusing the reconsideration application. This included a statement that there was “no legal mechanism by which an application for a transcript of Employment Tribunal proceedings can be made”. The judge stated that there was no prospect of her decision being varied or revoked “because there is no legal right to a transcript of Employment Tribunal proceedings”.
Mr Kumar appealed on the basis that Rule 62 is silent on the issue of recordings. Whilst he acknowledged that, historically, employment tribunals have not audio-recorded their hearings, he could see no reason why he could not apply for a transcript when one had been made (as in this case), as he would be entitled to do if the hearing had taken place in the High Court or the County Court.
EAT decision
The EAT agreed with him, holding that it was hardly surprising that the 2013 rules did not say anything at all about transcripts for the simple reason that, as Mr Kumar had pointed out, employment tribunal proceedings had not historically been recorded.
By contrast, hearings in the High Court or the County Court are recorded unless the judge directs otherwise and parties to the hearing are entitled to request a transcript. Just because the 2013 rules were silent on the issue did not mean that he could not apply for one. The judge was therefore wrong to have refused the request and should instead have actioned it straight away.
However, the EAT made clear that, while there is a right to a transcript of the recording of the hearing, there is no right to a transcript of the tribunal’s oral reasons as these should be requested as written reasons under Rule 62. Likewise, parties to a case are only entitled to the written transcript, not access to or a copy of the audio-recording itself.