From 20 November 2023, all employment tribunal proceedings (subject to two limited exceptions)
will be recorded where the technical facility exists to do so.
Importantly, the prohibition on parties or observers recording a hearing (by audio or video) without the permission of the tribunal still stands. To do so would put the relevant individuals in contempt and/or be a criminal offence.
The recording will only be used in limited circumstances, including by a tribunal when preparing its judgment or for any purpose connected to the performance of their judicial duties. To minimise the risk of misuse, only in limited circumstances will a party or representative be permitted to listen to all or part of an audio recording of a hearing.
Will there be a transcript?
A party (or their representative), witness or anyone who participated in the hearing can request a transcript of a recording at their own expense. Publicly funded transcripts will be available where it is in the interests of justice to provide.
Those who did not participate in the hearing, including the press or public, can request a transcript for the parts of a hearing held in public (which include final hearings). Requests are to be made within 6 months of the final date of the hearing, and the requester will be required to pay the relevant charges (unless provision of a transcript at public expense has been approved, which will be uncommon).
The transcript will not include any oral judgment or reasons given at the hearing, which would need to be requested separately by a party to the hearing within the relevant time period.
What does this mean for businesses who are respondents to proceedings?
The ability to obtain a transcript could be very useful for the parties to a tribunal claim where there is doubt as to what may have been said during a hearing.
Businesses will understandably be concerned that access to transcripts may result in increased attention from the press or public, increasing the reputational impact that can arise from defending employment tribunal proceedings.
There are safeguards built in to guard against misuse of a transcript which, if breached may constitute unreasonable behaviour for the purposes of strike-out and costs and/or contempt. Misuse would include publishing an altered or misleading version of the transcript, including by placing it online or on social media (which may also attract civil liability).
It remains to be seen whether the press or public will take advantage of the new ability to obtain audio transcripts. The fee required to obtain a transcript is likely to be off-putting if there are no other reasons to suspect the case may be of interest to a wider audience. Without any other suggestion of interest (such as the parties involved or the issues), we consider it unlikely there will be a wave of requests for transcripts.
Overall, whilst businesses should be aware of the new audio recording ability, it is unlikely to materially alter tribunal strategy.
For more information or should you have any questions, please get in touch with one of our employment solicitors today by email or call us on 020 7842 1500.