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COVID-19: The ‘New Normal’ Experiences in the Employment Tribunal.

Legal Update by Robert Dunn.

Introduction                                                                         

On 18th March 2020, the Presidents of the Employment Tribunal (Scotland) and (England and Wales) released Presidential Guidance. Therein, they outlined how matters could and would progress during the Coronavirus pandemic. These included:           

-       An encouragement to use Rule 46 of the ET Rules 2013, which allows any hearing to be conducted with electronic communication, where it is just and equitable to do so;

-       Despite that, a warning that not all ET offices have access to video conferencing equipment, and that there may be insufficient staff and equipment available in the ET to process documentation and applications;

-       Judges should apply the overriding objective, to determine whether a hearing should take place in person, or by electronic communication; 

By 19th March 2020, there was further Presidential Guidance. This stated that from 23rd March 2020, all in-person hearings would be converted to a case management hearing by telephone

On 24th March 2020, the Guidance was amended. This confirmed that all in-person hearings up to 26th June 2020 would be converted to telephone case management. Hearings from 29th June 2020 would remain listed, subject to review. The next review dated is 29th May 2020. 

The Reality 

So, what is actually happening with the hearings? I share some experiences. 

Final Hearings 

In line with the Guidance, I am not aware of any final hearings going ahead. One could anticipate that a short unfair dismissal or wages claim, could be done with Skype for Business. 

Whilst solicitors could make application to the ET, in line with Rule 46, I am unaware of any such enquiries being successful. This may be due to technology limitations, with witnesses or even Judges, or perhaps wider concerns as to whether it is ‘just and equitable’. Probably both. There are outstanding questions as to how to judge credibility, or ensure the integrity of a witnesses’ evidence, when one can only see their face on a webcam. 

Case Management Hearings 

Private case management hearings are being listed by telephone. I am unaware of any being listed by Skype as yet. Standard case management hearings are proceeding as normal. 

Telephone Case Management Hearing that have been converted, have involved updates on the parties’ progress with directions, any applications, and listing for a Final Hearing. Judges have sometimes been unable to give the new date on the phone, due to communication issues with the ET office. That said, one would hope the ET would be amenable to any subsequent application to postpone, based on the dates being unsuitable for witnesses or Counsel. Judges have also pushed Judicial Mediation, quite rightly, at every opportunity. 

Open Preliminary Hearings 

A fortnight ago, by telephone, I appeared in an Open Preliminary Hearing on a time point. The ET listed this pro-actively, although not all Regional Centres may be so willing. It is worth Solicitors considering seeking this for any Open PH, if desired, by Skype or telephone. Key points from the hearing procedure to note: 

-       The representatives, the Judge and the Claimant all joined by telephone. The ET sent out the number:

-       The Claimant gave live evidence, was cross-examined by myself, and the Judge asked questions. This was by no means ideal, but given the nature of the case, and the narrowness of the issues, was feasible. I would understand why in a more factually complex case, either the ET or the parties may not want this;

-       The Claimant affirmed the truth of his evidence by telephone. It is unclear how one could make sure a Claimant was properly taking an oath upon a holy book; 

Some Tribunals are therefore dealing with live evidence, in Open PHs, by telephone. Its limitations were evident, but we got there. Should it be in line with the overriding objective, and just and equitable (Rule 46), this could be explored. 

Judicial Mediation 

I am also aware of the ET listing Judicial Mediations by Skype for Business, where Counsel and the Judge has the technology, and by telephone. Last week, I appeared in a telephone Judicial Mediation. As to the practicalities: 

-       The ET provided a number, as in a Case Management Discussion, and all the relevant parties joined. The Judge then provided an opening;

-       There then appeared to be some level of confusion as to how to recreate a Judicial Mediation by telephone. Ultimately, the Judge provided a mobile number (on the promise of confidentiality), and each representative created a WhatsApp group containing themselves, their client, and the Judge;

-       When the Judge wished to speak with a party, or vice versa, one would start a group voice on WhatsApp. Phone numbers were deleted post-hearing;

-       Correspondence with the client were made on telephone, outside the WhatsApp calls; 

After the initial uncertainty, the process worked relatively well. WhatsApp calling a Judge, was not something I considered I would ever do, and given the many potential issues involved, is not likely to be a longer term solution. Again though, whilst not ideal, it worked. 

Conclusion

Unfortunately, experiences of the ET during COVID-19 are likely to be different across the country. Circumstances are moving quickly. However, this Article shows that Tribunals are taking novel steps to progress cases where appropriate, and parties remain advised to co-operate and be pro-active in helping this be achieved.

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