Transcripts of ET proceedings
Employment Matters e-update – May 2022
The EAT case of Kumar v MES Environmental Ltd (reported at the end of last month) confirmed that parties may also be able to apply for a copy of the hearing transcript of a recorded hearing.
Kumar brought claims of race discrimination and victimisation arising from an unsuccessful job application and a full merits hearing took place in person. Kumar’s claims were unsuccessful.
Although not commonplace, the hearing was audio-recorded by HMCTS and Kumar applied for a transcript of the recording. The ET refused the claimant’s application, on the basis that there is no express right to apply for a transcript under the rules.
Kumar appealed to the EAT which held that the transcript should be provided on the basis that the mere fact that the rules were silent on the ability to apply for a transcript was simply because audio-recording of ET hearings was not commonplace. That did not mean that a transcript could not be produced where it is available.
The EAT went on to make the important qualification. The EAT stated that the right to request a transcript of recorded proceedings does not apply where an ET gives oral reasons for a decision.
Where a court or tribunal gives an oral decision, and a written decision is then also produced, the written decision is not required to be a pure verbatim transcript of the oral reasons. The written decision records the judge’s or tribunal’s final and definitive statement, articulation and expression of their reasons for their decision, and may differ from the way in which the oral reasons were expressed. Therefore, to permit a party access to a raw verbatim transcript of the oral reasons would not only be unnecessary, it would be contrary to the principle that it is the written decision that is the definitive record of the reasons for the decision.