“The Employment Judge was also asked to comment on this. The judge stated that his notes were not as clear as he might have hoped.”
Ejvet v Genesis Education Trust[2022]EAT75
Executive Summary
I am an unrepresented Claimant in Employment Tribunal proceedings lasting now nearly 6 years. I went through appeal process to the ET Manchester Judgment from Sep’19 to Apr’22. Appeal identified 6 errors in Judgment later reduced to 2 by Respondent’s Barrister, however no new evidence was presented and 3 EAT Judges considered my 55 pages Appeal Notice. I won one claim in Jul’19 for which I have not received any remedy.
ET Manchester Judgment was delivered 11 months from the final 3-day Hearing with 7 witnesses, and further ‘refresher’ Hearing was called on in Jul’19 for the Respondent witness to give her testimony again, but I wasn’t able to refresh my account.
It is my view, because Tribunal didn’t rely on Hearing recording and transcript, didn’t record the Hearing, the evidence was at best forgotten at worst omitted and the Judgment is severely swayed to benefit employer and Peninsula, who represents my employer, but because it is an insurance company potentially liable for any awards, therefore purse me with increased aggression with many Senior Lawyers set against me on papers and multiple in one Hearing. Even escalated to the Legal Director level – Mr Potts, who sits at Employment Tribunal table in National User Group meetings, which is clearly seen by me as preferential treatment, prejudice and strong appearance of bias, because he is actively involved in my case. The Hearing was very chaotic, Judge retired and there was not enough time with Respondent presenting 8 witnesses versus 4 declared at PH, when the Hearing length was scheduled some 6 months before- legally represented Respondent should have known better it will cause disruptions, or did they?
In the final hearing all Panel members took notes, one typed transcription on laptop.
There was no way for me to obtain those transcripts notes leading to my appeal, with significant memory gaps, and evidence from 2-3 years prior.
Respondent also cross-appealed to the EAT in regards to victimisation claim I won, but the appeal was unsuccessful. The Respondent was then allowed to put before up to 4 different EAT Judges their duplicated cross-appeal using my appeal process and bundles of paperwork. They were still unsuccessful, however ET Manchester used the claim won by me, as punishment, withholding an award from me to this day.
This is the collective of evidence gathered on requesting judges’ notes from Employment Tribunal and those are contradicting and confusing, when Senior Presidents claim those are an ‘official record’ of evidence.
“Whilst it is uncontroversial that the judiciary is not accountable to any other institution that does not mean that either individually or institutionally judges are unaccountable.
The first form of direct accountability comes through open justice. It is a bedrock of the common law described by Jeremy Bentham as the “keenest spur to exertion and the surest of all guards against improbity.” It is guaranteed by article 6 of the European Convention on Human Rights and, in part, by article 14 of the International Convention on Civil and Political Rights. It is subject only to limited exceptions and provides a powerful check against arbitrary behaviour. Open justice ensures that what goes on in courts and tribunals can be seen, reported on and discussed, including critically. (…)Greater openness of this sort will not only secure greater accountability but will help to support institutional independence by enhancing public understanding of what the courts do and how judicial decisions are made. A modern approach to open justice has included supporting the expansion of the lawfulness of broadcasting court proceedings, when to do so does not have an adverse impact on the administration of justice.“ Lionel Cohen Lecture 2022: Lord Chief Justice, 30 May 2022
UK House of Lords Select Committee on the Constitution, “COVID-19 and the Courts” Report 30 March 2021, reads:
“78. Access to justice is fundamental to the rule of law. It requires that the
protection of the law be accessible to all. Legal processes should also be open and transparent to allow for scrutiny of proceedings and enhance public confidence in the justice system. The media and members of the public must be able to observe court hearings for justice to be seen to be done.
87. Attending court can be a stressful and alienating experience. The outcome
of a court case can be life-changing for the individuals involved. That is true
of many family, employment and asylum cases where emotions run high and
users’ perceptions of fairness are fragile.”
I will be referring to certain documents obtained and case law, as follows:
Annexes
| Index | Title | Page No |
| Evidence | ||
| 1 | Letter Response OFFICE OF THE SENIOR PRESIDENT OF TRIBUNALS 08 Apr’22 | 1-2 |
| 2 | Letter Response CEO HMCTS Nick Goodwin 27 May’22 | 3-4 |
| 3 | EX107 Form Request for transcription of Court or Tribunal proceedings 29 Jul’20 | 5-14 |
| 4 | Claimant’s LIP request for Judges Notes ET Manchester Response 31 Jul’20 | 15 |
| 5 | MOJ SAR Response Judges Notes 05 Oct’20 | 16-19 |
| 6 | Judicial Office Complaint Response Judges Notes 19 Oct’22 | 20-22 |
| 7 | EAT Request for Judges Notes from 1st Judgment (Sift) and before Rule 3(10)Hearing 27 Jul’20 NOT RESPONDED | 23 |
| 8 | EAT Order Requesting ET Judges Notes after Claimant provided verbatim hearing transcript and Respondent refusing to agree on ‘note of evidence’ Judges notes handwritten and impossible to read, gaps of evidence.20 Apr.21 | 24 |
| 9 | EAT Redistributed full ET Judges Notes 24 Apr’21 | 25 |
| Authorities Case Law | ||
| 10 | Crossland v Information Commissioner and Leeds City Council [2020] UKUT 260 (AAC) (ADMINISTRATIVE APPEALS CHAMBER) | 1-38 |
| 11 | Mr_R_Kumar_v_MES_Environmental_Ltd__2022__EAT_60 | 39-52 |
| 12 | Mrs_R_Ejvet_v_Genesis_Education_Trust__2022__EAT_75 | 53-81 |
| 13 | Dr_R_Heal_v_The_Chancellor__Master_and_Scholars_of_the_University_of_Oxford_and_Others_UKEAT_0070_19_DA | 82-106 |
| 14 | CPR 39.9 Recording and transcription of proceedings | 107 |
| 15 | Mr_M_Harris_v_Academies_Enterprise_Trust_and_Others_UKEAT_0097_14_KN (1) | 108-135 |
| 16 | HMCTS Off-Framework User Permission Form (EX107 OFC) omitted on Gov.uk! | 136-145 |
Annex 1
“ Recordings and transcripts may be made in some circumstances as a reasonable adjustment. It is also possible to take a note of the proceedings, and a litigant in person may bring a friend or relative with them to the tribunal to act as a notetaker. The Employment Tribunals provide detailed written reasons explaining the factual and legal basis of their decisions. Any appeal is based on the judgment and supporting reasons, and the Employment Appeal Tribunal will not accept a transcript in place of written reasons. If at appeal the parties cannot agree what was said in evidence, the Employment Appeal Tribunal may ask the judge who heard the case to answer questions in writing about the evidence on a particular issue or issues. When that happens, both parties will be provided with the document the judge sends in response. In accordance with its Practice Direction, the Employment Appeal Tribunal may also, if it wishes, obtain the judge’s notes of evidence on any disputed matter, which will then feature in the appeal bundle.”
Myth
Employment Tribunal hearings may take up to 32 (see Mr A Teague v HM Revenue and Customs: 2600403/2017) consecutive weekdays in public, complex, sometimes chaotic, mostly hurtful, private revelations Hearing. It is borderline impossible to find someone to take verbatim notes for you in full time day by day capacity, or tweet live for you. Further still for this person’s notes to be later accepted as compelling evidence and agreed by the legally represented employer some years later.
In this Claimant’s 3-day hearing [2405428/2016] all Panel Members and a Judge took notes, one person transcribed constantly on his laptop throughout the hearing – those notes were not possible to obtain, but for EAT Order in late appeal proceedings (past first sift Judgment and a Hearing Rule 3(10) Judgment). ET Judge retired. Notes handwritten, impossible to decipher perhaps some legal jargon , gaps in evidence. Appeal hearing took place 3 years from ET hearing, 6 years after case launched 6 errors identified by EAT-2 returned to ET back to square one.
Appeal process is very daunting and traumatic for LIP and in my experience:
- All ET forms and paperwork must be filed from scratch to strict requirement;
- There are very strict time limits to appeal 42-day, whereas the previous stage of ET Judges’ Reconsideration (time limit 14 days) may not be decided in time of appeal;
- Separate Bundle must be created to a very strict page count and relevant documents, as well as Authorities Bundle, Grounds and Skeleton Arguments must be produced;
- The appeal takes 3 stages and is considered by 3 (different) EAT Judges, or even President, like in my case; if there are grounds for appeal:
- Stage 1 is response on papers without Hearing – it is called sift decision;
- Stage 2 may be, if requested, Rule 3(10) Hearing – it is a Hearing of Appellant with the EAT Judge – Respondent cannot participate;
- Only then if grounds are identified for appeal – there is a Stage 3 – Final Hearing, with again plenty of preparation, Bundles and Skeleton Argument on grounds allowed and relevant authorities.
- Case numbers allocated may be changed at different stages of appeal adding to confusion and stress.
- There are no time limits for the EAT decisions responses.
- Often a parallel cross-appeal maybe pursued by the Respondent, where LIP must provide responses and prepare separately.
- Judge’s notes were only requested originally on some points of appeal and late before Final Hearing, if granted.
Those were not possible to read, or decipher, handwritten in often chaotic environment – in the end there is no reference to them in the Final Hearing transcript, as an apparent ‘official record’ of evidence, Appellant LIP was not attending.
Annex 2
“HMCTS’ Employment Jurisdictional Support team has confirmed that where recording equipment is available, tribunals are encouraged to use it. As Ms Paczkowska is aware, when someone wants to appeal an Employment Tribunal decision and there’s no recording available, claimants can ask for the judge’s notes. Ms Paczkowska will be interested to know HMCTS is currently considering the benefits of providing recording equipment in all court and tribunal rooms, against the cost to the taxpayer.”
Myth
Claimants, in particular Litigants in Person, will not be able to obtain Judge’s notes out of their own volition.
Annex 3
HMCTS Form EX107
“3 DAY HEARING ON 3 – 5 SEPTEMBER 2018
ALL 3 PANEL MEMBERS NOTED EVERY WORD THAT WAS SAID IN A HEARING.
JUDGMENT GIVEN 11 MONTHS AFTER THE HEARING.
APPEAL TO BE HEARD NEXT MONTH (TBC)
REQUIRE TRANSCRIPT FROM ALL 3 PANEL MEMBERS.
8 7 WITNESSES CROSS-EXAMINED.”
Myth
Request denied
Annex 4
“I can confirm that I have passed your email to the team that’s deals with all SAR requests for them to action. Unfortunately we do not currently record our hearings so we will be unable to provide a transcript from the hearing.
Kind regards
Sarah Hawthorne
Delivery Manager
Employment Tribunal | HMCTS | Manchester ET | M3 2JA
Phone: 0161 833 6100
Coronavirus (COVID-19): courts and tribunals planning and preparation
Here is how HMCTS uses personal data about you”
Myth
Request was for any transcript. At least one Panel Member typed evidence on laptop throughout the hearing, as well as Judges Notes – denied.
Annex 5
“Please note that transcripts are not always available within the Employment Tribunal and tribunal hearings are not always recorded. Any notes made by the Employment Judge and Lay panel members, are notes for personal use, to assist them during the case. I have contacted Manchester Employment Tribunal and they have confirmed that they do not hold any transcripts for this hearing.
Regarding your request for copies of the notes, please be advised that the MoJ is not responsible for the data you have requested.
Your personal data contained within notes are the property of Employment Judge Mr JN Sherratt with Lay Members, Mr Q Colborn and Mrs CA Titherington . Judges are separate Data Controllers from the MoJ, which means that, in this case, it is for the above named to consider your request for your personal data contained within the judicial notes. This response has been prepared on behalf of Employment Judge Mr JN Sherratt and Lay Members, Mr Q Colborn and Mrs CA Titherington.
Your request has been refused.”
Myth
Judges/Panel Members Notes are unattainable for common Claimant.
Annex 6
“Your request was handled under the General Data Protection Regulation (GDPR) and Data Protection Act 2018 (DPA). The request was refused relying on the exemption for judicial processing contained in the DPA.
As requested, I have investigated your complaint on behalf of the Judicial Data Protection Panel (the Panel). Your complaint is not upheld because the response provided was correct in law. The right of access provided for by Article 15 of the GDPR does not apply to notes produced by judges while acting in a judicial capacity. The taking of notes by judges during a hearing is something which is done while the judge is acting in a judicial capacity.”
Judges’ notes made during the course of an Employment Tribunal hearing are not part of the court records. Judges’ notes are made by the judge solely for the purpose of assisting in and in preparation of a decision. The notes do not constitute the formal record of the case, or any part of the formal record of the case.”
Myth Judges Notes denied by all Employment Tribunal departments, including MOJ and Judiciary.
Annex 7
“I am writing in regards to allegations of bias and perversity in the above Appeal. In line with the EAT Practice Direction (Employment Appeal Tribunal – Procedure) 2018, 12.12
Complaints about the Conduct of the Employment Tribunal Hearing or Bias;
And
The procedure set in Par.39 in Facey v Midas Retail Security & Anor [2000] UKEAT 966_98_0905 (9 May 2000)
(i) First the steps outlined in the EAT Practice Direction paragraph 9 (3) will be taken and unsworn comments may then be taken from the Chairman (Employment Tribunal Judge Sherratt) and, if necessary, other Members of the Employment Tribunal under paragraph 9 (4);”
Myth
The appeal was refused on sift (1st EAT Judgment on papers by the EAT President Chaudhury) to later 6 errors in ET Judgment be identified in Rule 3(10) Hearing 2nd Stage, but on the same 55 pgs Notice of Appeal and evidence before the Court, different Judges. ET Judges notes nor comments, as per above EAT own Rules were not obtained, when Judge was still available –shortly after Sift decision retired.
Annex 8&9
Judges Notes were only requested on Claimant’s providing verbatim hearing transcript, due to numerous discrepancies in ET Judgment. EAT directed Parties to ‘agree note of evidence’ be it this verbatim hearing transcript. Respondent refused to agree, undoubtedly having mislead Tribunal throughout and in closing statements. EAT first ordered Judges Notes only from day 1 of the Hearing, later on 6 errors identified in ET Judgment.
HMCTS provided full notes consisting of handwritten doctors-writing notes of 116 pages produced in chaotic environment of 7 witnesses in 3-day Hearing, with, when deciphered next to verbatim hearing transcript, missing crucial evidence and facts.
AUTHORITIES AND CASE LAW
Annex 10
Crossland v Information Commissioner and Leeds City Council [2020] UKUT 260 (AAC)
(ADMINISTRATIVE APPEALS CHAMBER)
“Proceedings in the First-tier Tribunal are not ordinarily recorded (it is not a court of record) and no transcript of the hearing will be available” – see Singh v Secretary of State for the Home Department [2016] EWCA Civ 492 at [53(4)]. Still other tribunals operate entirely pragmatically, recording hearings if they happen to be sitting at a venue which offers that facility, but not if they are not.”
“… recording practice also varies across tribunals. Some tribunals digitally record all hearings as a matter of course. Other tribunals rarely, if ever, digitally record hearings, relying on the judge’s note. … [Others will do so] if they happen to be sitting at a venue which offers that facility, but not if they are not(…)”Par.58
Annex 11
“PRACTICE AND PROCEDURE
The claims of the claimant in the employment tribunal were heard at a four-day full merits hearing by a full tribunal. An oral decision was given at the hearing dismissing the claims. Following the hearing, the claimant completed and submitted to the employment tribunal form EX107, applying for a transcript of the proceedings at the hearing. The application was referred by the administration to the judge, who decided that the claimant was not entitled to apply for a transcript. The judge erred in so deciding.
Historically, proceedings in employment tribunals were not audio-recorded by HMCTS. It is therefore unsurprising that the Employment Tribunals Rules of Procedure 2013 say nothing about transcripts. Similarly, the EAT’s current practice direction proceeds, in relation to matters such as requests for a judge’s notes and agreement of notes of evidence, on the implied assumption that no other or better record will be available.”
“it is apparent that there has recently been at least one successful application to the employment tribunal administration for a transcript of parts of a hearing that was partially recorded by HMCTS, as is apparent from the decision in Werner v University of Southampton EA-2019-000973, 15 September 2021. He also referred me to a practice direction issued in Scotland in June 2020, regarding conduct of remote hearings, which refers to this possibility.”Par.19
“In summary, whilst historically employment tribunals did not audio-record their hearings, if (as in this case) an audio recording has been made by HMCTS, then, just as in other courts and tribunals, it should be possible to apply for a transcript. No rule of procedure is necessary to enable that. If, contrary to his primary submission, some rule needs to provide an umbrella for that process, then it could be found either in rule 2 (the overriding objective), rule 29 (case management orders) or rule 41 (regulation of procedure in relation to hearings). “Par.20
“It would not be right to infer that, because the CPR (39.9) contained such a provision and the 2013 Rule did not, the intention was that this facility should not be available in relation to employment tribunal proceedings, given that the silence of the 2013 Rules was merely a reflection of the historical fact that in the past such hearings were not audio-recorded at all by HMCTS. But, where such a recording did exist, the CPR approach should be followed.”Par.21
Annex 12
“71. The Employment Judge was also asked to comment on this. The judge stated that his notes were not as clear as he might have hoped. However, he stated that within his notes, he had placed an asterisk in his notes.”
Annex 13
‘10. Upon further consideration on the sift, permission to proceed to a full hearing before the EAT was granted by HHJ Auerbach on 5 March 2019.
11. I also note, as part of the relevant background, that on 31 August 2018, the Newcastle
ET (in relation to a different case), sent a letter to the Claimant in the following terms:
“Dear Dr Heal,
The Tribunal has noted and granted your request for reasonable adjustments,
i.e. at least size 12 Arial font; use of recording device during any hearing; and
comfort breaks during any hearing.”
“49
d. The Tribunal’s notes of evidence will continue to be the conclusive record of the
hearing before it, certainly whilst it remains the position that Employment Tribunal
proceedings are not routinely the subject of official digital recording. The fact that a
Tribunal has consented to a recording being made by a party, and the undisputed
content of that recording appears to conflict with the Tribunal’s written notes of
evidence, would not mean that the recording automatically takes precedence.
Whether or not it should take precedence in respect of any issue will be a matter for
the Tribunal to determine having regard to all the circumstances.”
Annex 14
Annex 15
In Goldman Sachs Services Ltd v Montali [2002] ICR1251 HHJ Peter Clark said, considering the overriding objective as it had been introduced in 2001 to Employment Tribunals, that this was the (paragraph 26):
“… clearest possible indication that when exercising any power under the Rules, as here, the employment tribunal will follow the same principles as those spelt out in the Civil Procedure Rules.”
Court of Appeal in Neary:
“I would accept [Counsel for the Respondent’s] submission that it should be inferred that Parliament deliberately did not incorporate CPR r 3.9(1) into employment tribunal practice when it chose to incorporate the overriding objective. There is, to my mind, an obvious reason why Parliament did not do so. It has always been the intention of Parliament that employment tribunal proceedings should be as short, simple and informal as possible. We all know that that intention has not been fulfilled and employment law and practice have become difficult and complex.
But where Parliament has apparently decided not to incorporate into employment tribunal practice a set of requirements such as those in CPR r 3.9, I do not think it proper for the courts to incorporate them by judicial decision. It is one thing to say that employment tribunals should apply the same general principles as are applied in the civil courts and quite another to say that they are obliged to follow the letter of the CPR in all respects [emphasis added]. It is one thing to say that employment tribunals might find the list of CPR r 3.9(1) factors useful as a checklist and quite another to say that each factor must be explicitly considered in the employment judge’s reasons. I would overrule the line of Employment Appeal Tribunal authority which, in effect, requires specific consideration of all the CPR r
3.9(1) factors on an application involving relief from a sanction in the employment tribunal.”
Annex 16
Off-Framework – User Permissions Form (EX107 OFC) omitted from GOV.UK guidance and Portal
Application for permission to prepare a transcript or report from a recording made other than by the court
When to use this form:
This form gives limited permission to prepare a transcript or report from a recording made other than by the court/tribunal, and where the court/tribunal are not contributing to the
commissioning of those services.
Permission to use transcription services must be obtained from a Judge via completion of this form. By exception, if permission is given verbally in the court/tribunal this form must be
completed retrospectively and submitted to the court/tribunal for formal approval.
The applicant must complete part 1 of this form, sections A and B, and it should then be passed to the member of the judiciary conducting the hearing. Once approval has been granted, the court should complete section C and this should be retained by the Judge’s Clerk.
IN SUMMARY
Claimants struggle to obtain judges’ notes, as an official Employment Tribunals’ record of evidence and it’s only upon convincing the EAT Judges and in the rare event of grounds of appeal allowed, some notes might be requested.
As LIP it is not ideal, as all the odds are stacked against you.
ET stop oppressing me I just want justice 2405428/2016&2402211/2019 