Disabled ET Users
Courts and Tribunals are often requested to make reasonable adjustments to remove disadvantages for disabled users. In Heal v University of Oxford , Mr Heal has disabilities including dyslexia and dyspraxia. He stated that he has a disability in his ET1 and requested some adjustments including permission to use a recording device as his condition makes it difficult for him to take contemporaneous notes.On appeal, from the Employment Tribunal (ET), the Employment Appeal Tribunal (EAT)said that parties will hardly ever be allowed to record proceedings, and even if they are allowed to do so, strict limits will be applied.
Permission to Record Proceedings
The ET asked Mr Heal to make an application for permission to record at the preliminary hearing. The ET said that his application would be considered at the outset of the preliminary hearing if he provided the requisite information. If the “… application is to be considered before the hearing it should be made in a form that allows a practical and effective decision to me made. Among the matters I would need to consider are (a) whether there should be an adjustment; (b) if so, how is the adjustment to be carried into effect; (c) what is the effect on the respondent (e.g. are the respondent (sic) entitled to a copy of any recording or can they make their own recording). These points are all capable of being answered but they cannot be answered by me presently.”
Mr Heal was unhappy with this outcome and appealed to the EAT on the grounds that he should not have to make an application, and that the ET should have considered the matter before the preliminary hearing because if he brought a recording device into the building before permission was granted, he would be in contempt of court.
Circumstances When Permission Will Be Granted
The EAT said that the making of an audio recording of court proceedings without consent amounts to a contempt of court under Section 9 of the Contempt of Court Act 1981. The kinds of devices that might be used, e.g. mobile phones and portable digital recording devices, would fall within the scope of s.9 as being an “instrument for recording sound”. Even if the Court gives permission to record, s.9(1)(b) of the Contempt of Court Act 1981 prohibits publishing a recording or playing it in public. Playing a recording in public would include posting a recording on a publicly accessible website or social media platform.
A Court or Tribunal has unlimited discretion to grant, withhold or withdraw permission to use a recording device or to impose conditions on such use, however the following factors may be relevant;
(a) the existence of any reasonable need on the part of the applicant for leave, whether a litigant or a person connected with the press or broadcasting, for the recording to be made;(b) in a criminal case or a civil case in which a direction has been given excluding one or more witnesses from the court, the risk that the recording could be used for the purpose of briefing witnesses out of court;
(c) any possibility that the use of a recorder would disturb the proceedings or distract or worry any witnesses or other participants [Practice Direction (Tape Recorders) [1981] 1 WLR 1526]
Ultimately, Mr Heal was allowed to bring recording equipment to the hearing. His claim was dismissed on the various grounds that he raised before the EAT which set out the following considerations:
(a) under the Contempt of Court Act 1981, a tribunal has a discretion to allow a litigant to record proceedings.
(b) however, such permission should normally only be granted if there is a complete or partial inability to take contemporaneous notes, and that results in a substantial disadvantage to the litigant.
(c) even when permission is granted, it remains a criminal offence to publish that recording (and unlike the act of recording, courts are not allowed to give permission to publish)
(d) the tribunal’s notes of evidence remain the conclusive record of the hearing (although that might change when official digital recording of proceedings becomes routine).
(e) one possible adjustment for a person in the Claimant’s position is to allow time at the end of each witness’s evidence for the recording to be played back, to allow the litigant to formulate his questions and/or submissions.
Reasonable Adjustments
The EAT said that Courts and Tribunals have a duty to make reasonable adjustments under the Equality Act 2010.
a. Tribunals are under a duty to make reasonable adjustments to alleviate any substantial disadvantage related to disability in a party’s ability to participate in proceedings.
b. Where a disability is declared and adjustments to the Tribunal’s procedures are requested in the ET1 form, there is no automatic entitlement for those adjustments to be made. Whether or not the adjustments are made will be a matter of case management for the Tribunal to determine having regard to all relevant factors (including, where applicable, any information provided by or requested from a party) and giving effect to the overriding objective.
c. The Tribunal may consider whether to make a case management order setting out reasonable adjustments either on its own initiative or in response to an application made by a party.
d. If an application is made for reasonable adjustments, the Tribunal may deal with such an application in writing, or order that it be dealt with at a preliminary or final hearing: see Rule 30 of the ET Rules.
e. Where the adjustment sought is for permission for a party to record proceedings or parts thereof because of a disability-related inability to take contemporaneous notes or follow proceedings, the Tribunal may take account of the following matters, which are not exhaustive, in determining whether to grant permission:
i. The extent of the inability and any medical or other evidence in support;
ii. Whether the disadvantage in question can be alleviated by other means, such as assistance from another person, the provision of additional time or additional breaks in proceedings;
iii. The extent to which the recording of proceedings will alleviate the disadvantage in question;
iv. The risk that the recording will be used for prohibited purposes, such as to publish recorded material, or extracts therefrom;
v. The views of the other party or parties involved, and, in particular, whether the knowledge that a recording is being made by one party would worry or distract witnesses;
vi. Whether there should be any specific directions or limitations as to the use to which any recorded material may be put;
vii. The means of recording and whether this is likely to cause unreasonable disruption or delay to proceedings.
f. Where an adjustment is made to permit the recording of proceedings, parties ought to be reminded of the express prohibition under s.9(1)(b) of the 1981 Act on publishing such recording or playing it in the hearing of the public or any section of the public. This prohibition is likely to extend to any upload of the recording (or part thereof) on to any publicly accessible website or social media or any other information sharing platform.
Last Updated: [19/07/2022]
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