On the case: affordable changes and tribunal proceedings

Employers should be aware of their obligation to make appropriate adjustments for disabled workers or applicants. But what is allowed during legal proceedings? Should applicants be allowed to record the process? A recent case has shed light on the law in this area, reports Kevin Lau.

The latest case by Heal v University of Oxford is exciting read for anyone interested in a labor court trial or intrigued by the origins of the obligation to make reasonable adjustments.

For everyone else, the case may seem inconspicuous at first glance, but it is actually worth taking note of organizations and individuals.

The case involved a person (dyslexia, dyspraxia, and IBS made worse by anxiety) who made various claims of discrimination against the university.

Eligibility requirements

Dr. Heal routinely completed an application form asking if he had any disabilities and what assistance he might need in that regard.

He said he was disabled and asked for a number of adjustments, including permission to make audio recordings of hearings.

When the application form was examined in August 2018, the judge ruled that the best way to address the adjustments requested was to deal with it in a preliminary hearing prior to the main hearing of the application.

Unsatisfied with this result, the applicant requested reconsideration of the decision to examine the adjustments in this way, alleging in part that it was unfair to them that the audio recording request had not been considered prior to a preliminary hearing how he wouldn’t know if he could bring recorders that day.

A second judge examined the application in September 2018 and ruled that a preliminary hearing was the fairest approach as it would allow the applicant to explain why the adjustment they requested was necessary and appropriate.

The applicant appealed both decisions to the Employment Appeal Tribunal and after some back and forth, the applicant’s appeal was considered in July 2019 by the President of the Employment Appeal Tribunal, Mr Justice Choudhury.

Duty of the Tribunal to make appropriate adjustments

However, he completely denied the applicant’s appeal, and his judgment includes the following helpful indications of the court’s duty to consider reasonable adjustments:

  • For reasons of fairness, the tribunals are required to make reasonable adjustments to accommodate disabilities
  • However, the fact that a request for adjustment has been made does not entitle you to this adjustment
  • The Tribunal has extensive case management powers (set out in a set of rules) that can be used to determine what adjustments, if any, should be made.
  • When a party requests an adjustment, the tribunal can generally deal with the request on paper or in a hearing, and there may be good reasons why a tribunal can decide on an appropriate adjustment prior to a hearing, for example given at the entrance to the tribunal building

In relation to audio recordings in particular, the tribunals may wish to consider all relevant issues, including:

  • Medical evidence relating to the disability and the extent of any disadvantage
  • Whether allowing audio recordings would alleviate the disadvantage, or whether there are other means that could help
  • Other parties’ views and how permission to record would affect them
  • Practical issues such as the means of the records, whether they are shared, how they are used, possible interference, the risk of misuse of records, and any conditions attached to a permit given

Individual rights

Individuals wishing to record legal proceedings must seek permission from the court or risk being scorned in court for recording proceedings without permission.

Even if permission is given, it is likely to be given under strict conditions and any publication or reproduction of the recording in public may be scorn.

Individuals asking for permission should be willing to explain and provide evidence of how using audio recordings would alleviate their disadvantage and to consider whether less extreme measures would be sufficient, possibly by asking a friend to take notes and ask for more time to formulate questions.

Tips for employers

If an applicant files a request to record a hearing, the employer has the right to make their views known.

A litany of practical questions comes to mind; A record could intimidate witnesses and lead to injustice if the record is not shared with the employer. Recording and playback is likely to increase the length of the hearings. Such a recording could be misused and published, and most importantly: a recording device could record privileged discussions between other parties and their lawyers.

Employers should therefore carefully consider such questions before responding to such a request.

Regardless, employers should keep in mind that the above decision does not affect the use of recording devices during internal proceedings.

As a reminder, an employer’s policy often makes it clear whether or not a meeting is allowed to be recorded. If this is not allowed, the inclusion of an undercover recording can be considered improper conduct.

The need for recording during a disciplinary proceeding is often reduced by the presence of a formal note-taker, with a copy of the notes being made available to the employee for approval.

However, if the employer received a request from an employee citing a disability and requesting an appropriate adjustment to allow the hearing or meeting to be recorded, the employer would have to consider the request in the same way as any other request for a reasonable adjustment.

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