Heal v University of Oxford & Ors

A disabled litigant has no automatic entitlement to a procedural adjustment merely by declaring a disability and requesting it in an ET1. The Employment Tribunal must determine the request as a case-management matter, fairly and with regard to all relevant circumstances and the overriding objective.

Permission to record proceedings requires leave under section 9 of the Contempt of Court Act 1981. The Tribunal must assess the disability-related disadvantage, available alternatives, the utility and risks of recording, the effect on others, and suitable conditions. It may determine the request in writing or at a hearing. Bringing equipment to the Tribunal pending leave does not ordinarily amount to contempt unless it is brought in for recording sound without leave.

The Claimant, a litigant in person bringing discrimination and victimisation claims, stated in his ET1 that his disabilities made contemporaneous note-taking difficult. He sought permission to make an audio recording of hearings.

Employment Judges directed that the request should be pursued at a preliminary hearing, while leaving open a properly supported application before that hearing. The Claimant appealed, contending that the request should have been granted without an application, determined in advance, and treated consistently with an adjustment made in separate proceedings before another Tribunal.

The central issues were whether the Tribunal had erred in treating the request as a case-management application and whether section 9 of the Contempt of Court Act 1981 prevented the Claimant from bringing recording equipment to the hearing before permission to record had been granted.

1. Appeal dismissed. The Tribunal was entitled to approach the requested adjustment as a matter of case management under the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013. Although the statutory reasonable-adjustments duty in section 20 of the Equality Act 2010 does not apply to the exercise of a judicial function, fairness requires a Tribunal to take disability into account and to make reasonable adjustments where appropriate.

2. A disability declaration and request in an ET1 do not create an automatic right to the requested adjustment. The Tribunal must consider all relevant circumstances, including material supplied by the party, and give effect to the overriding objective. It may determine an adjustment request on the papers or direct that it be dealt with at a preliminary or final hearing.

3. Permission for a party to record proceedings requires the Tribunal's leave under section 9 of the Contempt of Court Act 1981. It is not normally a routine adjustment. The Tribunal may consider the extent and evidence of the disability-related inability to take notes, whether alternatives would alleviate the disadvantage, the benefit of recording, risks of prohibited use, the effect on other participants, possible conditions, and disruption or delay.

4. The Employment Judges committed no error by requiring a properly supported application and by considering it suitable for hearing. The reconsideration decision also permitted an application before the hearing if sufficient information were supplied. A case-management decision in a separate claim before another Tribunal did not bind the Tribunal in this claim.

5. Section 9 prohibits bringing a recording device into court for use in recording sound without leave; it does not prohibit simply bringing equipment into the building. The direction to consider permission at the hearing implicitly permitted the Claimant to bring the equipment, and express reassurance was later given. Contempt would arise if equipment were already recording on entry.

6. The Respondents' proposed alternative of a later official transcript would not address the asserted need to follow and respond to proceedings contemporaneously. Permission to record remains within the Tribunal's broad discretion, subject to case-specific conditions. A permitted recording generally has no greater status than a party's notes, and the Tribunal's notes remain the conclusive record.

• Employment Appeal Tribunal: the Claimant's appeal from the Employment Tribunal's case-management and reconsideration decisions was dismissed: [2019] UKEAT 0070_19_1607.
• Employment Tribunal: Employment Judges directed that the recording request be pursued at a preliminary hearing, while allowing a properly supported application to be considered before that hearing.