On the case: reasonable adjustments and tribunal proceedings

Employers should be well aware of their obligations to make reasonable adjustments for disabled employees or job candidates. But what is allowed during tribunal proceedings? Should claimants be allowed to record proceedings? A recent case has shed light on the law in this area, reports Kevin Lau. 

The recent case of Heal v University of Oxford makes exciting reading for anyone who is interested in employment tribunal procedure, or plain fascinated by the provenance of obligations to make reasonable adjustments.

For everyone else, however, the case may seem rather unremarkable at first blush, but it is in fact worth organisations and individuals taking note.

The case concerned an individual (who had dyslexia, dyspraxia and IBS aggravated by anxiety), making various claims of discrimination against the university.

Claimaint requirements

Dr Heal routinely completed a claim form as part of which he was asked whether he had any disabilities and what assistance he may require in that respect.

He indicated that he had disabilities and asked for a number of adjustments, including being permitted to make audio recordings of any hearings.

When the claim form came to be considered in August 2018, the judge decided that the best way to approach the requested adjustments was to deal with it at a preliminary hearing before the main hearing of the claim.

Not content with this outcome, the claimant asked for the decision to consider the adjustments in this manner be reconsidered, arguing in part that it was unfair to him that the audio recording request was not considered in advance of a preliminary hearing, as he would not know whether he could bring recording equipment along on the day.

A second judge considered the request in September 2018 and decided that a preliminary hearing was the fairest approach, as this would allow the claimant to explain why the adjustment he requested was required and reasonable.

The claimant appealed against both decisions at the Employment Appeal Tribunal, and after some to-ing and fro-ing, the claimant’s appeal was considered in July 2019 by president of the employment appeals tribunal, Mr Justice Choudhury.

Duty of tribunal on reasonable adjustments

However, he comprehensively rejected the claimant’s appeal and his judgment provides the following helpful guidance concerning the duty of the tribunal to consider reasonable adjustments:

• Tribunals have a duty to make reasonable adjustments to accommodate disability, as a matter of fairness
• However, the fact that a request for an adjustment has been made, does not equate to an entitlement to that adjustment
• The tribunal has wide-reaching case management powers (set out in a body of rules), which can be used to determine what adjustments, if any, should be made.
• If a party requests an adjustment, the tribunal may generally deal with the request on paper, or at a hearing, and there may be good reasons a tribunal may decide on a reasonable adjustment ahead of a hearing, with the example of tribunal building access being given

Specifically in relation to audio recordings, tribunals may wish to consider all relevant matters, which could include:

• Medical evidence concerning the disability, and the extent of any disadvantage
• Whether permitting audio recording would alleviate the disadvantage, or whether there are other means which might assist
• Views of the other parties and how permission to record would impact them
• Practical issues such as the means of the recordings, whether these would be shared, how they would be used, possible disruptions, risks of recordings being misused, and any conditions attached to any permission given

Individuals’ rights

Individuals who want to record tribunal proceedings need to obtain the tribunal’s permission, or risk being in contempt of court if they do record the proceedings without permission.

Even where permission is granted, it is likely to be granted with stringent conditions attached, and any publication or playing of the recording in public could amount to contempt.

Individuals seeking permission should be prepared to explain and provide supporting evidence as to how the use of audio recording would alleviate their disadvantage, and to consider whether less extreme measures would suffice, perhaps by asking a friend to take notes, and asking for more time to formulate questions.

Tips for employers

Where a claimant makes an application to record a hearing, the employer is entitled to make its views known.

A litany of practical issues come to mind; having a recording could intimidate witnesses, it could create unfairness if the recording isn’t shared with the employer, the recording and playback will likely add to the length of any hearings, such a recording could be misused and made public, and most importantly, a recording device could capture privileged discussions between other parties and their lawyers.

Employers should therefore consider such issues carefully before responding to such an application.

Separately, employers should bear in mind that the above decision does not have any bearing on the use of recording devices during internal procedures.

As a reminder, an employer’s policy will often set out clear guidance on whether the recording of any meeting is permitted or otherwise, and where they are not permitted, the taking of a covert recording could be regarded as misconduct.

The need for recording during a disciplinary is often lessened due to the presence of a formal note taker, with a copy of the notes being provided to the employee to agree.

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However, if the employer receives a request from an employee citing a disability and requesting that a reasonable adjustment be made to allow the hearing or meeting to be recorded, employers would then need to consider the request in the same way as any other request for a reasonable adjustment.

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