The case of Knight v Treherne Care & Consultancy is primarily about unfair dismissal but there is also a point about the Employment Appeal Tribunal Practice Direction and the procedure within it for agreeing a record of the hearing below. In civil law, an appellant is entitled to receive a transcript produced by the court and, although it has to pay the adminstrative costs of producing it, these will be recoverable from the opponent if the appeal is successful. The EAT used to have a similar practice, funded by the taxpayer, but excessive cost and abuse of the system to run ’fishing’ appeals made reform necessary.

The problem is that the EAT had to devise a system from scratch, which allows it to examine, where necessary, what happened below while also providing access to justice by keeping litigation costs down. It did so by encouraging parties to agree notes of evidence with the proviso that, if they fail to do so, the Registrar will decide which notes will be used at the hearing or will ask the tribunal to produce its own notes if necessary. There are also potential costs sanctions for parties who fail to reasonably co-operate in agreeing a note. This is all well and good but often, as in this case, the first of the three options is the preferred one with the consequence that one party’s note will be chosen over the other.

The reasons of Judge McMullen do not make it clear why the notes of the Claimant were preferred. The Respondent is chastised for failing to object to a ruling on the matter but this does not make it correct. My fear is that the Claimant, represented by Counsel, was able to produce a fuller note and so this was accepted and I have grounds for thinking that this might be the case as I have had encountered this reasoning from the Registrar in one of my own cases. The consequence is that there is an incentive for parties with more resources to hold the other side to ransom, knowing that their note will be accepted and their opponent will be unable to object, however clear their recollection of events. Perhaps it could be argued that which note is used is unlikely to make much difference in the vast majority of cases but, if so, a fairer solution would be to say that notes of evidence are not necessary at all. I believe that the current approach has the potential to create systematic unfairness and is a car crash waiting to happen.