Last published ET National User Group minutes published on 22 Sep 2022 informed:
"3.9 Recording and transcriptions
The President thanked the members of the national user group for their input into the draft practice direction and guidance documents on the recording of ET hearings and obtaining transcriptions of those hearings. There had also been consultation with HMCTS, BEIS, the Council of Employment Judges, the judges of the EAT and others. These responses gave rise to a number of policy issues that the two Presidents would need to reflect upon and discuss in further detail. An update would be provided in due course."[https://www.judiciary.uk/courts-and-tribunals/tribunals/employment-tribunal/employment-tribunal-england-wales/national-user-group/
It is understood, the new Practice Direction on ET recording and transcription, is to be expected soon.
To my knowledge there was no open consultation/call for evidence, like with also upcoming Open Justice new PD, and only members of National User Group organisations of lawyers mostly, not the Claimants were asked to contribute. Therefore I make below comments.
Open Justice call for evidence is due 07 Sep 2023, it is in regards to PD on remote observers, access to Courts and documents during the hearings:"This Call for Evidence is seeking evidence on a range of topics covering open justice, access to data, and the transparency of our court and tribunal services. "[https://www.gov.uk/government/consultations/open-justice-the-way-forward]
"It deals in turn with the publication of cause lists; remote observation of hearings; broadcasting; publication of judgments; access to court documents and information; data access and reuse; and public legal education."DLA
In the meantime, in Judicial College, Tribunals Journal, Edition 2-2020, page 14 extract:
"Recording tribunal proceedings
Innovation meets new challenges By Daniel Flury
Why record?
In making the case for recording, the Tribunals judiciary have made a number of arguments that I imagine many of
you will be familiar with. For example:
● It provides a clear and incontrovertible record of proceedings in contrast
to what are usually handwritten notes made by the judge and member.
● An audio recording and clear record could subsequently assist the
determination of any grounds of appeal.
● It encourages better behaviour from parties and witnesses and
encourages them to give accurate and detailed evidence.
● It greatly assists when dealing quickly and fairly with complaints made
against the Tribunal.
● It assists those parties in need of a resonable adjustment such as hearing
or memory loss.
● It creates a more ‘professional’ experience of Tribunal proceedings.
To achieve this, rather than install DARTs throughout, HMCTS purchased 300 state-of-the-art TASCAM DR-40
recording devices and microphones to support recording of oral hearings. These were purchased after a number of
tests with alternative handheld devices.
The Future of Recording
Given this widespread provision, HMCTS is now working closely with the Senior President’s Office and the Ministry
of Justice to produce a draft Practice Direction to further consolidate the use of recordings within the Employment
and First-tier Tribunals.
CVP can be used to record both video as well as face-to-face oral hearings and has the additional benefit of being stored on
the DARTs server while avoiding the expense of DARTs installation."
In Tribunal Edition 1, 2020:
"The event benefited from a number of presentations. The recording of hearings presentation outlined the need to make provision where recording provisions did not exist in the majority of our tribunals: the requirement was for devices/facilities which could record hearings, which could then be stored and retrieved. The presentation highlighted the fact that limited progress had been made which was an obvious source of frustration, I will be discussing this matter with the HMCTS Board."
[https://www.judiciary.uk/guidance-and-resources/tribunals-journal/]
Most recent The Times Radio interview of investigative journalist, David Hencke highlighted the ongoing problem again:
The Times Radio, Henry Bonsu (HB), 18 Aug 2023 at 10pm-1am- Interview with journalist David Hencke (DH) on whistleblowing troubles and Employment Tribunal 'lack of' record
[https://www.thetimes.co.uk/radio/show/20230818-19459/2023-08-18]
from 17'35'' to 24'10''
HB: Let’s move on and discussed that independent enquiry in a bit more detail. The government promised it look into the circumstances surrounding the deaths incidents including how concerns raised by those conditions were dealt with. We can now talk to the investigative journalist David Hencke who has written extensively on whistleblowers and how they dealt with by the NHS. Good evening David.
DH: Good evening
HB: Tom (Ball) did say that there are several senior doctors we now know tried to warn the hospital administrators about Lucy Letby, including the paediatrician Dr Stephen Brearey who was the first to notice she was present at these deaths in June 2015 initially and it will strike some listeners as shocking that there were fobbed off ,threatened and finally had to apologise to her. But given what you know about how hospitals work and how sometimes the wagons are circled, how shocked were you?
DH: Well to be quite honest, having looked at this issue for some time the world of whistleblowers, I frankly was not surprised what’s happened because I am increasingly finding in different places where doctors are spoken up about patient safety that instead of this being welcomed officially, official NHS line, you know, ‘we welcome we want you to speak up’ when someone does they then become the target of basically the administration of the hospital, just like in this case wanting to shut them up. And this is far more prevalent than the media I think realise at the moment. I've actually attend an organisation called Justice for Doctors, that’s really informal group and there are now about 100 members of it. And all of them have got different cases where they raised patient safety and are now basically either being dismissed or threatened to actually not say anything about this at least publicly, and what then happens is if they are being dismissed, they have to go to employment tribunal for unfair dismissal and then when they get there they find the Tribunal is really only interested in the detriment they suffered and not the issue of patient safety or anything like that.
HB: How could this be David, given the scandals, the terrible cases, the tragedies, that we here at The Times Radio, the newspaper, at the Times, that you have covered previously at The Guardian, time and time again with have Secretaries of State, like Jeremy Hunt saying there needs to be a whistleblowers charter, we need to make sure that no retaliation is visited upon these for doing the right thing, we what accountability, how on Earth can this still be the case?!!!
DH: Well, this is why it’s so bad! I mean frankly I’m getting very cynical about this great PR to say we have great whistleblowers charter, you know, we are going to sort everything out, because when you compare it with the facts of all cases going on now, I mean for example, if I take Dr Chris Day who was made the news about 10 years ago about the deaths, basically the avoidable deaths of two people in intensive care units in Woolwich hospital, and instead of them welcoming it and sorting it out they pursue him for 10 years and still going on, employed very expensive lawyers cost of about 700 grand at least at the moment to basically try to deny the case, when will be much simpler to sort it out. And he is by no means the only person.
HB: Is this a doctor that's should still be practicing, delivers service to patients and is now being distracted by this case?
DH: Yeah, exactly. He is actually not able to work at Woolwich, he was a Junior Doctor there. He is working at emergency sort of care centre at 'Wich Cross' , so he has got a job but its true they are destructed, and also there is another terrible thing that happens to whistleblowers in that normally employment tribunal's 99.95% virtually all you’re never asked to pay your employer costs and in whistleblowing cases this seems to be coming up regular occurrence. And there is a case next week when (inaudible) cardiologist, who was dismissed, but actually re-validated by the General Medical Council was really good doctor is facing out an extraordinary bill of 180 000 from the Epsom and St Helier Trust, which you know is enormous bill to face. That’s the sort of enormous trouble you’re getting into…
HB: Because she blew the whistle. I’ve been following this case on your blog David, Dr Usha Prasad, yes?
DH: Dr Usha Prasad, and see basically, I mean I attended the employment tribunal basically the trust admitted there was one case of a heart patient who basically was an avoidable death and the head of cardiology admitted in the Court, in the Tribunal, but he should have told the coroner and he never did, that was hashed up really, and when it came to the Judge’s judgment it wasn’t there! It didn’t mention the whistleblowing thing at all!!!
And that is another terrible thing about Tribunals, sorry to go on about this, at most Courts you have a record of what happened, in an Employment Tribunal there is no official record, there is only the judges notes and you're not allowed to get those and furthermore it's a criminal offense, if I as a journalist decided to record the actual proceedings without permission.
HB: That’s really shocking David! This sounds like a case that our colleagues here, at the newspaper needs to follow up on later this week if it is as significant as you say. Thank you very much David Hencke, investigative journalist."
Lived Experience and HMCTS Form EX107OFC
Transcripts, if available can be obtained using HMCTS form EX107 and available from Gov.uk on:
However HMCTS EX107OFC form, which allows parties to seek 'off Tribunal framework' recording and transcription PRIOR to the hearing starting is missing from any guidelines and it is not certain it will be included in the new ET PD on recording and transcription.
The form can also be used by Claimants, lacking resources, disabled, and by way of note-taking. It then allows Claimant to Audio record hearing within own resources/device, but not to be used in any way officially without indicating within the application first and prior permission.
I was able to use this form now several times (since I became aware of it by chance, as it is missing from Gov.uk). It may be very helpful to Claimants, LIP, to make/rely on detailed notes of the hearing, double check those against an official transcript of the Employment Tribunal (it is approximate number of inaudible/typos errors in transcript can be ~23 corrections/52 pgs transcript). It is very common and it would save Tribunal's time to make access to an official audio recording, if parties wish to look for those corrections and those are potentially significant. Transcription company is happy to make corrections on audit of those indicated and their quality check.
Cost of official transcript vary on number of words transcribed (folio=72 words, price from £0.80 per folio price recently increased from £0.76), length, transcription company and time request for transcript [https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1176504/EX107GN_0823.pdf
For some 3h hearing (no judgment), 272 folio in 12 days, it cost app £333 incl.Vat.
Or e.g. at £0.76/folio, 460 folio total £432 incl.Vat, for transcription including Judgment transcription which must be approved!
So full day hearing of 5-6h app. £600 ?
Time this e.g. 5-10 day hearing is £3000-6000?! no Claimant may afford and despite 'little' or no resources it is for the Judge who approves his hearing transcript at public expense upon application, and it can get refused even for 'no/little' resources Claimant.
This is why HMCTS Form EX107OFC is an alternative for Claimants without resource. But why is it missing from Gov.uk guidelines?
We call in through this petition for HMCTS form EX107OFC to be in official ET use and Gov.UK guidelines.
The form can be found in the bottom of the High Court Judgment here:
JR & B Farming Limited v Hewitt [2021] EWHC 1704 (Comm) (24 June 2021)
[https://www.bailii.org/ew/cases/EWHC/Comm/2021/1704.html
and relevant article here:
Recording and transcription of court hearings
And
Solicitors apologise after remote hearing recorded without permission
Sadly the new responsibility for Employment Tribunal's Rules and Regulations body the Tribunal Procedure Committee (taking over from BEIS), did not acknowledge nor respond to my e-mails asking for change on vijay.parkash@justice.gov.uk nor hanna.polanszky@justice.gov.uk.
Please note House Of Lords, Select Committee on the Constitution, published on 30 Mar 2021, attached-states:
‘Access to justice 78.
Access to justice is fundamental to the rule of law. It requires that the protection of the law be accessible to all. Legal processes should also be open and transparent to allow for scrutiny of proceedings and enhance public confidence in the justice system. The media and members of the public must be able to observe court hearings for justice to be seen to be done. Any adaptation of court operations in response to the COVID-19 pandemic, whether short-term or long-term, must not come at the expense of these essential constitutional requirements.’
Also PILOT PRACTICE DIRECTION: VIDEO/AUDIO HEARINGS IN THE FIRST-TIER TRIBUNAL AND THE UPPER TRIBUNAL, 02 Apr 2020 provided:
‘Access to recordings
6. Any hearing held in private under paragraph 4 must be recorded, where that is practicable, in a manner directed by the tribunal. Where authorised under s.32 of the Crime and Courts Act 2013 or 29ZA of the Tribunals, Courts and Enforcement Act 2007 (as inserted by the Coronavirus Act 2020), the tribunal may direct the hearing to be video recorded, otherwise the hearing must be audio recorded.
7. On the application of any person, any recording made in accordance with paragraph 6 may be accessed in a tribunal or court building, with the tribunals’ consent.’
Please consider this Petition. Letter to Decisionmakers, 21 Aug 2023
House of Commons, UK Parliament
Lord Chief Justice
ET/EAT Presidents
Senior Tribunals President
Justice Committee
Tribunal Procedure Committee
HMCTS
JACO
Equalities Office
The Rt. Hon. Angela Rayner MP