Matthews, R (on the application of) v Employment Tribunal

The absence of contemporaneous recording or a verbatim transcript in Employment Tribunal proceedings does not, without more, breach natural justice or Article 6 of the European Convention on Human Rights. Natural justice requires that both sides are heard and that the tribunal is free from bias. Article 6 requires a full, public and fair hearing, but does not require every judicial or quasi-judicial hearing to be recorded. The desirability of introducing recording equipment is a matter of policy and practicality, not a requirement of fairness.

The claimant sought judicial review of the Employment Tribunal’s general practice of not recording evidence or providing a transcript of proceedings. He had been the respondent to redundancy-payment claims and alleged that the successful applicants had given false evidence. He argued that the absence of a transcript impeded possible perjury proceedings and infringed natural justice and Article 6. The court considered whether the practice was unlawful and whether the claimant had a sufficient interest to bring the challenge.

1. The renewed application for permission to seek judicial review was refused. Although the challenge was framed generally, the claimant had sufficient personal impact, or at least an arguable sufficient interest, because he said that the absence of a transcript affected him personally.
2. Natural justice requires a court or tribunal to hear both sides and to be free from bias. The absence of verbatim recording has no bearing on either requirement.
3. Article 6 requires a full, public and fair hearing where civil rights are in issue. The absence of recording equipment is irrelevant to whether the hearing itself is fair. Contemporaneous recording is exceptional rather than the ordinary practice across judicial and quasi-judicial proceedings.
4. Recommendations by a departmental task force for recording equipment in Employment Tribunals did not alter that conclusion. Whether recording would be desirable or practicable was a policy question and did not establish that its absence made proceedings unfair.
5. The judge added, unnecessarily for the decision, that the claimant had not attended the hearing below and that his proposed use of a transcript was principally to support an investigation into alleged perjury. It was at least arguable that this did not concern the determination of his civil rights.
6. There was no order for costs.

The judgment records that the claimant had appealed to the Employment Appeal Tribunal and had sought permission from the Court of Appeal to pursue a further appeal. Those avenues had been unsuccessful. The present court refused the renewed application for permission to seek judicial review.