When is it acceptable to record Tribunal proceedings to help a disabled claimant?
The Employment Appeal Tribunal (EAT) has confirmed the approach Tribunals should take when considering whether to allow a disabled unrepresented claimant to record a hearing.
Background
In the case of Bella v Barclays Execution Services Ltd and others, the claimant was unrepresented in Employment Tribunal claims he brought against his employer. It was accepted that the claimant was disabled in law. He applied for permission to record a three-day preliminary hearing in his claim. He said that as a result of issues with his memory, focus and mood, he would struggle to take his own notes of the hearing, but could listen back to a recording during breaks and at the end of each day. He said this would help him participate more fully in the process.
The Tribunal refused both of his requests and the claimant's application for reconsideration of the decision. The claimant appealed to the EAT.
Recording the hearing was a reasonable adjustment
The EAT found that the Tribunal's rejection of the claimant's application was unlawful, and on this basis allowed the appeal. The Tribunal is under a duty to make reasonable adjustments to assist disabled parties. In most cases, it is unlikely to cause problems for the respondent if the claimant is allowed to record the hearing.
Unrepresented claimants are already likely to be substantially disadvantaged when litigating against lawyers on the other side. That disadvantage will be compounded for a disabled claimant who experiences difficulties in following the hearing. It therefore follows that in considering whether a proposed adjustment (in this case, the prospect of the claimant making their own recording of a hearing) is reasonable, the bar should not be set too high. The EAT concluded that the claimant's proposed adjustment was unlikely to impact on the proceedings but was likely to assist his participation in the preliminary hearing.
What broader learning points can be identified from this decision?
Whilst this decision concerns Employment Tribunal proceedings, practical learning points can be identified for employers running internal processes. Increasingly, employees are asking for permission to record formal meetings, such as disciplinary or grievance meetings. Whilst an employer's instinct might be to decline such a request, this case serves as a reminder to consider the reasons for the request - and indeed, whether the request might be a reasonable adjustment in the case of a disabled employee. Where permission is granted to record a meeting in limited circumstances, this may also reduce the likelihood of covert recordings. It may also offer an opportunity to control the way a recording is made, where it is stored and how it is disposed of after the event.