Backtracking and pussy footing: How a top judge reneged on plans to start nationwide recordings at tribunals

Employment Tribunal Open Justice Campaign

Judge Brian Doyle, former president of employment tribunals for England and Wales Pic credit: Salford University

New information has emerged showing how HM Court and Tribunal Service has backtracked and pussy footed over ending the scandalous failure to provide proper recordings and transcripts at employment tribunal hearings.

This failure led to a letter signed by over 320 people -including 80 NHS consultants and leading professors- demanding an explanation from Sir Keith Lindblom, senior president of the tribunals, on why this has not been done. There is widespread dissatisfaction among whistleblowers both in the NHS and industrial hearings about this.

Now minutes from a national tribunal user group have revealed that a plan to introduce the recording of tribunals across the country was dumped – despite resources being available – two years ago.

Judge Brian Doyle, the former president of Employment Tribunals for England and Wales, promised on February 27, 2019 to introduce the recording of tribunals, at a meeting of the group. The group is attended by senior judges, representatives of the TUC, ACAS the Law Society, the Business Energy and Industrial Strategy department and the Citizens Advice Bureaux

Roll out of recording facilities planned to be completed by March 2020

The minutes record: “The President addressed the need for audio-recording of ET hearings. Resources had been found to enable this to be achieved and both the Employment Tribunal and the First-tier Tribunal would benefit from the acquisition of recording equipment in hearing rooms. It was planned to be a gradual rollout from April 2019 to March 2020.”

He went on: “Testing of equipment would be required. A nationally agreed protocol would cover the practice of recording hearings and the provision of transcripts. If a party were to ask for a transcript, as in the courts it would be on the payment of a fee.”

“The President said that audio-recording would be welcome for a number of reasons: reducing the need for the judges to take verbatim notes; providing parties with a transcript of the hearing; improving the conduct of hearings generally; providing some discouragement for litigants or witnesses to misconduct themselves in hearings; and giving leadership judges the means to check complaints about how a judge allegedly behaved in a hearing (and thereby perhaps discouraging unmeritorious complaints).

By November 2019 the minutes recorded: “The President updated the members on the intention to provide audio-recording equipment in all Employment Tribunal hearing rooms. A budget for the equipment had been secured, but making this proposal operational was taking a little longer than intended because it was important to get the right recording equipment and to have in place a protocol for its use. “

Yet by March 2020 when the pandemic struck nothing appears to have been done -apart from a few trials. One of them at social security and child support hearings in Exeter had already been a success before February 2019.

Judge Barry Clarke, current president of employment tribunals for England and Wales

Now two years later under a new president Judge Barry Clarke there appears to be little progress – no protocol has been published let alone sent out for consultation. If there had been transcripts could have been provided in a number of highly controversial whistleblowers cases – notably the case between Alison McDermott and Sellafield and the Nuclear Decommissioning Authority; Usha Prasad and Epsom and St Helier University Health Trust and further cases involving the junior doctor Chris Day and the Health Education England.

Instead there appears to be a hostile attitude by some judges to any transparency in the tribunal system.

I would cite Judge Hughes as a good example. She ruled in a Birmingham employment tribunal case ( Mr R Kumar V MES Environmental Ltd.) The case involved racial discrimination and victimisation. He lost the case and applied for a transcript.

She ruled this was ILLEGAL. He was told by a court administrator:.

“Employment Judge Hughes has asked me to inform you that the reason you cannot apply for a transcript is because you are not legally entitled to make such an application. You are referred to the Employment Tribunals (Rules of Procedure Regulations) 2013. “

The judge doubled down the 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”.

Judge Auerbach Pic Credit: Law Gazette

Two months ago this ruling went before Judge Simon Auerbach at an appeal tribunal. He revoked this saying that since in this case HMCTS had made a recording of the hearing Mr Kumar was entitled to apply for it and it was not illegal to do so.

Now judges are many things but they are not stupid. It seems extraordinary that Judge Hughes was not aware that discussions were going ahead at the time to introduce recordings and she must known in that case the hearing had been recorded. She obviously did not want him to have it.

Similarly anti recording attitudes seem to be propagated by Judge Tony Hyams-Parish in Dr Usha Prasad’s case ( see previous blogs) and by the Judge Lancaster in Alison McDermott’s case agaInst Sellafield. He refused Alison’s request for a recording even though he had the equipment to do so. Both just say there is no recording so you cannot have it. Hyams-Parish also believes that journalists should not have access to the bundles in cases either.

Alex Chalk MP, the solicitor general

But there is worse to come. Anybody listening to a tribunal hearing is banned from recording it. One person who did is now being prosecuted by the solicitor general., Alex Chalk, the Conservative MP for Cheltenham.

Katarzyna Paczkowska has had her case referred to the High Court after she used a recording to challenge a tribunal judgement. Her case is complicated and runs to 1800 pages so I won’t go into it now – except to say how ferociously this rule is being used without the tribunals agreeing to record the hearings. Manchester employment tribunal and her respondent, R-com. Consulting, raised the issue.

For my mind the present situation is one of drift, back tracking and pussy footing by the top judges.

A Ministry of Justice Spokesperson said:

“Though there is no legal requirement to record employment tribunals, handheld recording devices have been made available through this pilot which started in September 2019.”

My understanding is that HMCTS has an aspiration of a nationwide recording of all tribunals but no timetable yet on how this going to be achieved. But there does not appear to be any drive and determination to get this done, even though resources had been put aside. It is simply not good enough.

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