The Claimant applied to the ET to be allowed to record a 3-day preliminary hearing. The EJ declined to grant the application as he was not satisfied with the evidence in support or that there was any significant disadvantage to the Claimant. The Claimant appealed.

The EAT allowed the appeal. In reaching his decision, the EJ did not refer to the guidance provided on this question in Heal v University of Oxford [2020] ICR 1294. Although the guidance in Heal is not mandatory, is in important in considering an application to record proceedings and by not referring to it, the Judge then failed to take into account factors material to the assessment of the Claimant’s application. The EJ should therefore have granted the application and it was right to make a declaration that the decision not to do so was unlawful. The Claimant did not seek any additional remedy beyond the bare declaration.