Christian Abanda Bella v Barclays Execution Services Limited & Ors

An Employment Tribunal considering a disabled party’s request to record proceedings must make reasonable adjustments where needed to alleviate a substantial disability-related disadvantage in participation. Permission is not automatic. However, the relevant guidance in Heal identifies material considerations, including the evidence of disadvantage, alternatives, likely benefit, misuse risk, other parties’ views, safeguards, and disruption.

Although that guidance is not mandatory, a tribunal errs in law if it fails to consider material factors which it identifies. In a non-adversarial recording application, especially for an unrepresented disabled litigant, the reasonableness threshold should not be set too high where recording is likely to assist participation and cause little disruption.

The appellant, a disabled litigant in person, asked to record a three-day remote preliminary hearing concerning the respondents’ strike-out applications. He relied on his own account of cognitive difficulties and, on reconsideration, a report from his long-term psychotherapist recommending recording as a reasonable adjustment.

Employment Judge Crosfill refused the requests in letters dated 12 and 16 July 2022. The judge later arranged for HMCTS to record the hearing, but that recording was not available to the appellant during the hearing. The appellant did not seek to overturn the substantive decision made after the preliminary hearing. He appealed only the refusal to permit his own recording.

The central issue was whether the Employment Judge had lawfully refused the requested adjustment.

1. Appeal allowed. The Employment Judge’s decision of 16 July 2022 refusing permission to record the proceedings was unlawful. The EAT made a declaration to that effect and no further order.

2. The tribunal’s obligation to make reasonable adjustments arises as a matter of general law governing the exercise of judicial discretion. It requires attention to disability-related barriers to effective participation. The disabled person will commonly be well placed to explain the effects of the disability and the adjustment that may alleviate them.

3. The guidance in Heal was not a mandatory framework. It nevertheless identified important material considerations for an application to record proceedings. The Employment Judge failed to address whether other measures met the appellant’s actual difficulty, whether a recording would alleviate it, the minimal risk of prohibited use, the respondents’ lack of objection, possible limits on use, and whether recording by CVP would cause disruption.

4. The judge gave insufficient weight to the psychotherapist’s evidence. Her lack of clinical qualifications did not justify readily putting aside the recommendation of a trained and experienced practitioner who had treated the appellant for years. The appellant’s ability to participate in shorter earlier hearings also did not establish that he could effectively manage his first three-day CVP hearing without a recording.

5. HMCTS recording did not answer the application because the appellant needed access to the recording during the hearing and overnight adjournments to follow and answer submissions. Recording a submissions-only hearing presented little risk of misuse, could have been subject to directions reflecting s.9(1)(b) of the Contempt of Court Act 1981, and was unlikely to cause material disruption. The requested adjustment should therefore have been made.

• Employment Appeal Tribunal: Allowed the appeal and declared unlawful the Employment Judge’s refusal, in a letter dated 16 July 2022, to permit the appellant to record the preliminary hearing.

• Employment Tribunal: Employment Judge Crosfill refused permission to record a three-day preliminary hearing convened to determine the respondents’ strike-out applications.