Date: 23 May 2022
Dear Sir/Madam
Re: Petition - Stop Employment Tribunals status of Court of 'no record' now
I am writing to request recording and or transcripts for all Employment Tribunal hearings. Recording of only video hearings creates prejudice to discrimination and whistleblowing cases, branded for in-person hearings.
Previously a letter was sent to you signed by more than 300 doctors, lawyers, professionals, whistleblowers to request the same. [https://www.lawgazette.co.uk/practice/lack-of-transcripts-prejudices-employment-hearings/5111947.article
“More than 300 doctors, journalists and whistleblowers have called for employment tribunal proceedings to be recorded and official transcripts provided to parties to improve fairness and access to justice.
Signatories of a letter sent to Judge Barry Clarke, president of the employment tribunal services in England and Wales, say that an 'accurate and complete court record is a fundamental prerequisite and basis for a fair trial'. But, they argue, the lack of an independent and complete transcript is a 'serious shortcoming' in the system.
If the judgment that follows a hearing omits substantial elements of oral evidence that support the claimant’s case, the prospects of a successful appeal are hampered without a court record.
'This imbalance irretrievably denies parties the right to prepare adequately an appeal and it is manifestly unfair,' the letter states. Reference to the full record 'is the only way to determine whether the decision made was fair and proper'.”
Here in this live Petition - 625 signatories, asks not to further delay this inevitable innovation.
In most recent judgment Kumar[2022] EAT 60, H Hon Judge Auerbach stated:
“Historically, proceedings in employment tribunals were not audio-recorded by HMCTS. It is therefore unsurprising that the Employment Tribunals Rules of Procedure 2013 say nothing about transcripts. Similarly, the EAT’s current practice direction proceeds, in relation to matters such as requests for a judge’s notes and agreement of notes of evidence, on the implied assumption that no other or better record will be available.”
In The Modernisation of Tribunals Innovation Plan for 2019/2020, Senior President of Tribunals concluded:
"ALL TRIBUNALS (DIGITAL RECORDING)
Aim: To digitally record all hearings in the Tribunals
Objectives: 1.To provide one of the means by which open access to justice i.e. the scrutiny of public hearings is facilitated,
2. To provide a record independent of the judge and panel members which is capable, where appropriate, of transcription.
Plan: In 2019, recording facilities will be introduced in all First-tier Tribunals that sit in the HMCTS estate."
Transparency data Minutes of the National User Group meeting held on 27 February 2019 published 04 Jul 2019 read in Employment Tribunal-President Report:
"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. Currently there was a pilot in Exeter being held in Social Security & Child Support hearings, which had been successful. 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)."
Similarly Employment Tribunal President National User Group Minutes, 19 Jun 2019 state:
“A budget has been agreed for 2019/20 for the provision of audio-recording equipment in all ET hearing rooms and to be subject to a protocol for its use and for the provision of transcripts. A timeline for the roll-out of audio-recording has not yet been agreed.”
Further on 12 Nov 2019, President concluded:
“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. A transcript of the hearing would be available subject to the agreed protocol.”
Regional Employment Tribunal Judge, Central London, Judge Wade stated speaking from experience, in an interview on 21 Dec 2021:
“It is a significant burden in our system, that we are expected to provide written reasons for people, if they ask or if the hearing doesn’t finish in the allotted time. Sometimes there is no option but to do what we call a reserved decision and it is a SIGNIFICANT BURDEN on Employment Judges. Judges in County and Higher Courts don’t have that obligation – THEY HAVE TRANSCRIPTS AVAILABLE. We do not, we do not record our hearings, we do not have transcripts available, so the Judge has to sit down and CRAFT a written decision which can be very long and time consuming, so they need at least a day to come to their decision and get it into some kind of shape that it could be produced as a written document.”
In EAT Judgment, Scranage v. Rochdale Metropolitan Borough Council[UKEAT/0032/17/DM ] in reference to Employment Tribunal Judge Sherratt admitting new evidence - a hearing transcript, which at the time was unverified, unstamped, unsigned, therefore not a 100% credible evidence in 2016-he just took Claimant's word for it (See par.19). The Employment Tribunal Judge benefited from hearing transcript evidence without any objection, as it was objectively decided to be a better evidence available.
NOTE: The reference to record in Employment Tribunal dates back to 1990 and the technology, volumes and capabilities of Tribunals, as well as external factors, including pandemic, changed significantly.
"The most that can perhaps be said is that the Judge is under a duty to take a note of the evidence (see Houston v Lightwater Farms Ltd [1990] ICR 502 at 507, where it was held that a chairman of what was then an industrial (now an employment) tribunal “as a judge, has in our judgment a judicial duty to make some note of the proceedings before him, including the evidence, for the assistance of an appellate court in the event of an appeal”)"Crossland v Information Commissioner and Leeds City Council [2020] UKUT 260 (AAC)
The Tribunals progressed to 21st Century, but for proper record of proceedings.
Judges do retire, notes are handwritten in often chaotic environment in hearings taking consecutive 30 days and overwhelming witnesses, legal dilemmas and evidence. Language or different accents barriers may cause judge to miss spoken statements. Judges are often called to another hearing straight after. Obtaining Judges Notes, if at all successful by the Claimants, only and in late stages of appeal, proves difficult to read and prepare. Asking a friend or hiring note-taker transcriber for a hearing of sensitive nature and lasting several days, if not weeks, proves very difficult, as Claimants, especially LIP are overwhelmed with case preparation. Judges have over 22 jurisdictions with over 186 000 complaints [gov.uk 2020/2021 statistics]a year to decide upon. Current backlog [Mar2021] is over 500 000 including multiple claims. Claims return on appeals with requirement for preliminary hearings and final hearings. Waiting times of a year and more. There is disproportionate inequality of arms between Claimants and Employers. All in all it is 'impossible' for both the Tribunal and the Claimants to comprehend.
Written submission on behalf of the judiciary to Open justice: court reporting in the digital age, Parliamentary Committee, 22 Nov 2021, THE RT. HON. SIR KEITH LINDBLOM, SENIOR PRESIDENT OF TRIBUNALS provided evidence:
“Transcripts of public proceedings generally can be made
available.
Courts are used to better evidence and organically progress towards innovation:
“The absence of a statement of reasons would normally put an applicant for permission to appeal in a very difficult position, given the need to identify an arguable error of law on the part of the FTT. However, in the present case the digital record of proceedings was available. I was able to satisfy myself on two points as a result of listening to the digital recording of the hearing.”Par.18, MC v SSWP and TM (CSM) [2020] UKUT 157 (AAC)
And accepting even covert recording (BETTER EVIDENCE):
"Thus, the court is presented with the problem(...) of evidence which may have been obtained improperly or unfairly but which is nevertheless relevant and probative."
"Claimant “elected to record her appointments both to provide herself with a reference as an aide memoire of what was said and to provide herself with evidence to demonstrate any misunderstanding as to what was actually said, if required”. "Her (Claimant's) motives were, in the context of adversarial litigation, understandable. Whilst her actions lacked courtesy and transparency, covert recording has become a fact of professional life."
"the extent of this part of my decision is that the recordings have raised legitimate questions"High Court, 11 Oct 2019 [[2019] EWHC 2623 (QB)]
Claimants gave report to the Equal Opportunities Commissions 1989 and Government studies 2007, in regards to burden and unfairness, due to lack of court record in Tribunals, i.e. 1989: My experience was that I was fighting both the defendants and the Tribunal or I had a feeling that the members of the bench were on the employer's side or in 2007 Gibbons Report: The lasting significance of the Gibbons report (Mar2007) is that it encouraged a number of employers and business-friendly journalists to begin a complaint which had not been heard for several years, namely that the Tribunal system was broken and in need of dramatic change. The Engineering Employers’ Federation asked if Tribunal remained ‘fit for purpose’.”Renton
Employment Relations Research Series 55, The experience of claimants in race discrimination Employment Tribunal cases, conducted in 2006 by the Institute for Employment Studies, Department of Trade and Industry;
“‘I found the pre-hearing intimidating because it was me, the barrister and
somebody from the Tribunal. And I didn’t think of feel comfortable because
the person chairing the meeting would decide or they would get annoyed
because I didn’t know the procedure. But the fact was there was no way of
knowing what the process was.’
This claimant felt strongly that there should be someone independent to
advise claimants on what to expect at the Tribunal:
‘They should take you through and explain, and recommend you take it
down, and come and sit in, down in the public gallery and take you through
the procedures really.’”
“However, other claimants whose cases had reached a Tribunal hearing felt
that they had not been dealt with fairly by the Chair. Those who had
experience of more than one case at Tribunal, or who had several hearings,
reported that the attitude and approaches of the Tribunal Chairs varied
greatly. They talked about the likelihood of getting a Chair who would hear
their case fairly as being ‘luck of the draw’. Claimants who felt the Chair to be unsympathetic found it difficult to adjust to the adversarial tone set by their approach.”
“Despite being a medical professional, with considerable academic and
professional achievement, the claimant found the legal jargon and processes very confusing.
‘I just didn’t feel that stuff was adequately explained. There was a lot of
technical stuff that just went over my head.’ (Unsuccessful case)”
“‘The first thing she turned around and said was if you’re looking for
anything you’ll get nothing… She said if you’re looking for money or
anything you won’t get nothing.’
His story had been in the paper and the Tribunal panel had a copy of the
newspaper, so they were clearly aware of it. The claimant’s representative
advised him to withdraw the case because it seemed that the panel were
not going to hear it properly, and that they had already decided before
hearing the evidence. His adviser at the CAB later told the claimant that this Chair had thrown away a good case in the past. This had not been at all what he had expected from the Tribunal”
“Even in cases where claimants felt satisfied with the tone and approach of the Chair and panel, questions were raised when the decision reached seemed very different to how the claimants remembered the hearings to have gone.”
“Several claimants talked about the balance of power at the Tribunal hearing between the claimant and the respondent. While some claimants felt that the main hearing provided a balance of opportunity for both sides to put their points across, many others did not. In almost all cases, a perceived unequal balance of power related to the attitude and sympathies of the Chair and the panel, and the differences in representation between the claimant and the respondent.”
And views from Senior Judiciary:
In THE POWER OF JUDGES, David Neuberger, Peter Riddell, 2018:
(David Neuberger was a president of the Supreme Court of the United Kingdom from 2012 to 2017.)
A. “The role of appointing judges has been taken over by the Judicial Appointments Commission, which was created by the 2005 Act. The Commission consists of some judges and some other lawyers…”
B. “There is a very real danger that justice through the courts is, in practice, only available to institutions or the very rich. The law seems opaque and complicated to ordinary people. It is not nearly as diverse as it should be, and judges, like all of us, suffer from unconscious bias.”
C. “There is evidence that judges themselves are suffering from low morale”
D. “How robust is the judicial system as a whole? There are a number of potential problems. Lack of diversity, the court system is groaning and in danger of collapse.”2018
Also Rt Hon Lord Neuberger, in his F A Mann Lecture 2015 says:
b) “Judges are human, and therefore it is inevitable that they are susceptible to cognitive bias.”
c) “28. One study summaries its conclusions as follows:
d) “Judges, it seems, are human. They appear to fall prey to the same cognitive illusions that psychologists have identified among lay persons and other professionals… Even if judges are free from prejudice against either litigant, fully understand the relevant law, know all of the relevant facts, and can put their personal politics aside, they might still make systematically erroneous decisions because of the way they – like all humans – think.”
e) “Famously, justice must not just be done, but must be seen to be done. “
f) “Judges typically consider their own recusal applications (…) Some Judges are too reluctant to recuse themselves, as they find it hard to believe that they could be seen as biased,”
g) “13. I would suggest that this ability to self-correct is one of the strongest characteristics Judges can possess and is likely to help to lead to a just result. The reality is that, in many cases, it is possible to reach more than one conclusion on the facts, which raises the question of what we even mean by the “right” answer. And the more difficult the case, the more true that is, and so it is scarcely surprising that one not infrequently sees sharp differences of opinion between Judges in appellate courts. “
h) “Judges:
“study the results of earlier cases and the reasons given by the judges for reaching those results … . But Judges are not engaging in some inexorable exercise in which every choice is determined by existing law. Choice there is, but often not the choice between the right answer and the wrong answer. … Between them, law, reason and discretion leave Judges free to declare results which derive at least in part from philosophies, attitudes and influences which are not themselves rules of law.”
i) “a world in which it is acknowledged that Judges do more than just reveal pre-existing law, is one in which they are rightly subject to greater scrutiny.”
The law:
The Civil Courts are governed by the Civil Procedure Rules which allow under rule 39.9(1) the digital and tape recording of proceedings.
In 2015 Lord Briggs called in a Government Report to align Employment Tribunal more to County Courts.
Please note UN Treaty Rights observed in ICCPR, Article 14 to provide a competent Tribunal:
All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights or obligations in a suit of law, everyone shall be entitled to a FAIR and public hearing by a COMPETENT, independent and impartial tribunal established by law.
Human Rights Act 1998 provides for Right to a Fair Trial and the protections of ones interests and property.
Please consider Our Petition, as a matter of importance and utmost priority.
Sincerely,
Katarzyna Paczkowska
CC: Government Department