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

MR JUSTICE HUGHES: This is a renewed application for judicial review directed to the Employment Tribunals. It seeks to challenge the failure of the Tribunals to provide contemporaneous recordings before Tribunals and, in consequence, a full transcript of such proceedings. That is a challenge which, on the face of it, is general rather than particular.

Mr Matthews accepts that the practice of Employment Tribunals is not to provide recording equipment for the taking of evidence, and thus no transcript. What happens is that the chairman, and it may be other members for their own purposes, takes a note of relevant evidence; but it is not, of course, a transcript. When it comes to the delivery of the decision, the Tribunal's reasons are fully recorded and transcribed in every case.

The claimant here wishes to submit that that practice is contrary to the rules of natural justice and to his rights under Article 6 of the European Convention on Human Rights in his capacity as a party to proceedings before an Employment Tribunal. There is, he asserts, an infringement of his right to a fair trial.

The background to the claim is that the complainant was the employer/respondent to claims that were made in an Employment Tribunal for redundancy payments. The issues before the Tribunal were these. The claimant accepted that he had given up the business in question. He contended, however, first, that the three applicants did not have the continuity of employment for which they contended; and, second, that although he had originally given them notice of dismissal, those notices had been superseded by an agreement between him and them for them to take over the business, debts and all, with the consequence, he submitted, that there was no dismissal. Their contrary case was that they had indeed been dismissed, but had subsequently rented the premises from him, rather than accepting a transfer of his business undertaking.

The applicants succeeded in the Employment Tribunal. It is the claimant's contention that, in the course of giving evidence before the Tribunal, they gave false evidence. He has made a number of attempts to persuade the police and the Crown Prosecution Service to bring prosecutions against the applicants for perjury. He contends here that it is the absence of a transcript of proceedings below which impedes him in proving that false evidence was given.

I accept that it follows from that that his challenge to the Tribunal's practice is not simply a generalised one, but that the practice has personal impact upon him, and accordingly, or at any rate arguably I am satisfied, he has a sufficient interest to seek judicial review.

That said, I am satisfied that the application is unarguable and must be refused. I say that for these reasons. First, the rules of natural justice require that a court or Tribunal must hear both sides of the case and must be free of bias. The absence of verbatim recording has no bearing on either of those requirements. Secondly, Article 6 requires that the claimant should have had a full and public fair hearing, where his rights were in issue, as they were. The absence of recording equipment is, however, entirely irrelevant to whether the hearing itself is fair or not. Those propositions I regard as wholly self-evident.

I add this. If it were the case that absence of recording automatically were to render a hearing unfair, then it would follow that an enormous number of judicial and quasi-judicial proceedings are, all of them, entirely unfair. Contemporaneous recording of judicial or quasi-judicial hearings is the exception rather than the rule. Of course proceedings in the High Court are all recorded, and proceedings in the Crown Court are all recorded, and there may well be others. But proceedings in the vast majority of Tribunals, of all manner and kind, are not recorded. Proceedings in the hundreds of thousands of cases which proceed each year in the county court are not ordinarily recorded, nor are the even greater number of proceedings in Magistrates' Courts up and down the country.

It is, I am afraid, of no help to the claimant to say that recommendations have been made by a departmental task force for the installation of recording equipment in Employment Tribunals. Whether that is desirable or practicable or not I simply do not know, but it in no sense follows that the absence of it renders the proceedings unfair.

I should perhaps add two things, although they are not necessary for the decision which I have arrived at. First, it is a fact, as a matter of history, that part of the claimant's difficulty in knowing exactly what evidence was given below, along with his dissatisfaction with the results in the Employment Tribunal, stems from the fact that he did not attend. His reasons, and an application which he made for an adjournment, were very fully considered by the Employment Tribunal, but rejected.

The claimant has made a number of attempts to challenge that decision. He appealed to the Employment Appeal Tribunal, and he sought the permission of the Court of Appeal for leave to make a further appeal. Those avenues have, unsurprisingly, not been successful.

Secondly, it seems that what the claimant seeks is ammunition from a transcript for a purpose outside the case which was before the Tribunal: it is for an investigation of alleged perjury. In those circumstances, it is at least arguable that the absence of recording does not bear on the determination by the Tribunal of Mr Matthews' civil rights.

I add those observations, although as I say, they are not necessary in the light of my very clear conclusion upon the principal submission. It follows that this renewed application for permission must be refused. It is a most interesting suggestion, Mr Matthews, thank you very much, but I am afraid that is all it is.

MISS PATRY: My Lord, we do not make any application for costs, and simply put that there be no order for costs.

MR JUSTICE HUGHES: Thank you very much. Thank you, Mr Matthews, for coming.

MR MATTHEWS: My Lord, can I say one thing? I have spoken to the Crown Prosecution Service since, and they are going to have a look at the matter again, and once I obtain your transcript, I will take your transcript to them.

MR JUSTICE HUGHES: So be it. Thank you.