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When can a Claimant make an audio recording of Tribunal proceedings?

Senior Associate Solicitor, Alexandra Besnard

The Employment Appeal Tribunal in Heal v University of Oxford has considered the circumstances in which individuals with disabilities and medical conditions should be allowed to audio record proceedings.

Background

An unrepresented Claimant  brought a claim for discrimination and victimisation against colleges of the University of Oxford. The Claimant suffers from dyslexia and dyspraxia. As a result of these conditions, he indicated in his claim form that he would require assistance at the hearing by way of audio recording in order to follow the proceedings. The Tribunal informed the Claimant that this issue would be decided at a preliminary hearing.

The Claimant appealed this decision on the grounds that the Tribunal had failed to make reasonable adjustments to accommodate his difficulties and that the Tribunal had failed to follow the decision of another Tribunal who had permitted such adjustment in a different case. The Claimant also asserted that the Tribunal had failed to make this decision within a reasonable time frame before the hearing, which added to his stress and anxiety.

The Law

Under section 9 of the Contempt of Court Act 1981, an individual may be in contempt of court where they audio record court proceedings without the prior consent of the Tribunal, which may be given depending on the circumstances of the case. Under the Equality Act 2010, the Tribunal also has a duty to make reasonable adjustments to accommodate any disabilities or conditions that have the effect of putting that individual at a disadvantage. There is however no automatic entitlement to such an adjustment.

Decision

The Employment Appeal Tribunal (“EAT”) dismissed the appeal.

In dismissing the appeal, the EAT decided that the adjustment of using a recording device is a matter of case management and that there is no automatic entitlement to that adjustment even if it is declared in the claim form. A Claimant must explain the extent of their difficulties in order for a Tribunal to assess whether any adjustment is necessary. The EAT upheld the view that in this case, such an application to allow the recording of the proceedings as an adjustments could be made at a preliminary hearing and it was not necessary for the Tribunal to make a decision prior to this.

When deciding whether to allow any adjustment, a Tribunal will consider the following factors: the extent of the Claimant’s disability and inability to follow the proceedings; whether the disadvantage can be addressed by alternative means, such as rest breaks; the benefits of the proceedings being recorded; the risks of recording the proceedings; the views of the other parties involved in the proceedings and whether any specific directions or limitations should be imposed with regard to the recording. The EAT held that the Claimant failed to provide the requisite information in order to make the decision to allow the adjustment.

Comment

This decision clarifies that there is no automatic entitlement to adjustments in proceedings and that it is a matter of the Tribunal’s discretion on examination of the circumstances of the specific individual. The question of whether specific adjustments are permitted in the hearing is a case management issue and therefore a Claimant requesting such an adjustment would be required to make an application at a preliminary hearing accompanied by supporting reasons.

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