The Employment Appeal Tribunal (EAT) has held in Kumar v MES Environmental Ltd that where HMCTS has made an audio recording of an employment tribunal hearing, a party can apply for a transcript, provided they pay the applicable fee and comply with the associated protocols
The claimant brought claims of direct race discrimination and victimisation, both of which were dismissed by the tribunal. The claimant later applied to the tribunal for a transcript of the hearing, using form EX107. This is a form by which a person can apply for a transcript of an audio recording of a High Court or County Court hearing under Rule 39.9 of the Civil Procedure Rules; these do not apply to employment tribunal proceedings and the ET Rules do not include any provision for the recording of hearings or any right to apply for a transcript. The employment judge refused, holding that the ET rules made no provision for such an application. The claimant appealed to the EAT.
The EAT held that it as unsurprising that, as employment tribunal proceedings have not historically been recorded, the ET Rules (which are now nearly a decade old) do not mention transcripts. Silence didn't mean that Parliament had decided that a party cannot request a transcript when a recording has been made, although the EAT conceded that it would be better if the position were expressly addressed in the ET Rules. The EAT concluded that, where proceedings have been recorded by HMCTS, a party should, in principle, be able to apply for a transcript of the recording, subject to paying and complying with the appropriate protocols.
Take note: The decision in Kumar confirms that where an employment tribunal hearing has been recorded a party can apply for an official transcript of the proceedings using form EX107 and ensuring that the appropriate fee is paid. It's worth noting that the EAT made it clear that, where a tribunal gives oral reasons for its decision at a hearing, there is no right to a transcript of those oral reasons. The reasoning behind this is that where an oral decision is given when is then followed by written reasons, the written reasons are not required to be a pure verbatim transcript of the oral reasons.
