MR R KUMAR v MES ENVIRONMENTAL LIMITED

Where HMCTS has audio-recorded an employment tribunal hearing, a party may in principle request a transcript through the established procedure, on payment of the applicable fee and subject to the relevant protocols. The silence of the Employment Tribunals Rules of Procedure 2013 does not remove that facility.

The Employment Appeal Tribunal retains control over whether any transcript may be introduced on an appeal. A party must show that it is necessary for the fair disposal of an arguable ground of appeal. The right does not extend to a raw transcript of oral reasons: where written reasons are provided, they are the definitive record of the tribunal's reasons.

The claimant's race discrimination and victimisation claims were dismissed orally after a four-day merits hearing in the Employment Tribunal. He requested a transcript using form EX107. The Employment Judge rejected the request, and later refused reconsideration, on the basis that there was no legal mechanism or right to obtain a transcript of Employment Tribunal proceedings.

The claimant appealed that ruling. It was subsequently confirmed that HMCTS had audio-recorded the hearing. The central issue was whether a party may request, on payment, a transcript of an Employment Tribunal hearing which HMCTS has in fact recorded.

1. Appeal allowed. The Employment Judge erred in holding that the claimant could not apply for a transcript. The Employment Tribunals Rules of Procedure 2013 are silent on transcripts because Employment Tribunal hearings were historically not audio-recorded by HMCTS. That silence does not show a legislative intention to prohibit a request where an official recording exists.
2. Where HMCTS has audio-recorded an Employment Tribunal hearing, a party may in principle request a transcript using the established procedure, subject to payment and compliance with the applicable protocols. Ordinarily, the administration should process such a request without judicial involvement. Judicial consideration may be needed only where there is a particular reason to refuse, qualify or restrict it.
3. This right does not give a party an entitlement to deploy the transcript in an EAT appeal. The EAT controls that separate process. A party seeking to rely on transcript material must obtain permission and show that it is necessary to the fair disposal of an arguable appeal ground, particularly in cases alleging procedural irregularity or perversity.
4. The entitlement is qualified in respect of oral reasons. A party may not obtain a raw verbatim transcript of the Employment Tribunal's oral decision. Written reasons are the tribunal's final and definitive statement of its reasons, and need not reproduce the oral delivery verbatim.
5. The decision concerned only an HMCTS recording and a request for a typed transcript. It neither gives a party access to the audio recording itself nor determines the position where no official recording exists or where a party seeks permission to make its own recording.

• Employment Appeal Tribunal: appeal allowed against the Employment Judge's refusal of a transcript request: [2022] EAT 60.
• Employment Tribunal: the Employment Judge refused the claimant's request and reconsideration application, holding that no mechanism or legal right existed to obtain a transcript of Employment Tribunal proceedings.