ETs go virtual: A practical guide
In this blog, Cloisters' barristers, Declan O'Dempsey, Olivia-Faith Dobbie and Ruaraidh Fitzpatrick take the reader through the current plan to get the Employment Tribunal system moving again along with practical advise in relation to when virtual hearings are appropriate and what steps should be taken now.
Declan O’Dempsey
Olivia-Faith Dobbie
Ruaraidh Fitzpatrick
Hot off the press is the President’s Updated FAQs and appended to it, at Appendix 1, the “Road Map” for how matters are to be progressed through the Tribunal system as lockdown eases. Click here for a full copy https://www.judiciary.uk/wp-content/uploads/2020/06/FAQ-edition-date-1-June-2020.pdf
In the Road Map, the Presidents have informed us to expect Practice Directions on remote hearings shortly. Under the “General Comments” section, we are also told to expect guidance on the list of factors to be considered when deciding whether a remote hearing is appropriate in a particular case. Cloisters will be blogging about these developments as they unfold, so keep an eye out for our helpful commentary and analysis in the coming weeks.
The Road Map out of lockdown
Following the March 2020 Joint Presidential Guidance (18 March) and the Joint Presidential Direction (23 March), all hearings listed up to 26 June 2020 were vacated and substituted with telephone case management hearings. Cases that were listed to take place during lockdown which were vacated, have received different treatment in different regions and at different stages of the lockdown. Some were re-listed for a time when it was hoped lockdown would have ceased, others placed in a queue for a listing yet to be determined (once a solution had been devised).
In the Road Map, there is a now four-phase plan out of lockdown for the Tribunals to start conducting more hearings. The Road Map is said to be aspirational, and is contingent on various factors: public health guidance; the Tribunal managing to increase its staff and judicial resources as planned; technology being rolled out as planned; and the availability of safe and risk-assessed Tribunal rooms for some in-person hearings. In broad terms, the plan starts more tentatively by determining simpler matters remotely (by telephone and video hearings) and progresses to more complex matters being heard remotely, in-person, or a by a hybrid of the two.
As a general point, the Presidents comment that they want matters to progress “consensually, and they wish to ensure that remote hearing technology enhances rather than undermines access to justice”. However, this does not mean that any party will have a right of veto in respect to the method by which their case is determined. It is stated that whilst the Tribunal will “give consideration” to the parties’ views, it will be for the individual EJ in each case to decide on the best way to progress that matter. The factors relevant to that decision will be provided in due course, by way of Presidential guidance. The decision, in other words, remains a judicial decision and the judges will have to exercise their discretion having regard to all the relevant factors. So, in this blog, we have sought to anticipate the sorts of factors that are likely to be relevant.
Phase 1: June 2020:
From early June, there will be increased staffing in some tribunal offices and increased (and improved) technology to hear matters remotely, by way of a Cloud Video Platform (CVP) developed by Kinly. This is being used in other courts and is said to be better suited to facilitate a remote hearing than platforms designed primarily for meetings (such as Skype for Business, Zoom etc). The Presidents aim to provide 150 remote Tribunal rooms.
The Tribunals will continue to focus on case management hearings, judicial mediations and priority matters (those jurisdictions listed under question 10 of the FAQs) by telephone or CVP. However, EJs are also encouraged to consider remote hearings for more “straightforward” matters such as:
simple money claims with little contested evidence;
Remedy hearings with little contested evidence; and
Applications for matters such as costs / reconsiderations.
The Road Map states that it is “unlikely that many standard and open track cases will be heard in June remotely, unless they are of short duration or the resumption part-heard hearings.” [emphasis added]. Standard track cases are unfair dismissal claims (usually requiring 1-3 days) and open track cases are the more complex matters such as discrimination, whistle-blowing, equal pay etc. (that tend to take 3 or more days and require a full Tribunal).
The suggestion that any such cases might proceed remotely in June might send chills down the spines of even the most seasoned trial lawyers: the technology is new; the Presidents’ Direction of 23 March 2020 stated that all hearings due to commence on or before 26 June 2020 “will be converted to a case management hearing by telephone or other electronic means”; and the Road Map itself states that EJs will only receive training on CVP in June.
So, we think that it would be quite exceptional for standard or open track cases to be determined remotely in June. Where all parties agree that remote determination is possible in June and wish the matter to proceed it will be possible, but even then, we think unlikely.
Finally, the President states that in-person hearings in June are unlikely, but may be listed in exceptional cases, if “absolutely necessary”. It is difficult to imagine any such exceptions, but a judge could order a hearing in his or her discretion. Such cases might arise in interim relief matters, and an argument might be made in relation to cases relating to health and safety detriments under section 44. The Road Map is careful not to fetter the judicial discretion.
Phase 2: July / August
In July and August, we can expect to see increasing numbers of unfair dismissal claims being determined by CVP. More boldly, the President’s aim is to re-list for hearing in July and August all those unfair dismissal cases that were vacated during the lockdown (if they are deemed susceptible to remote determination). Accordingly, if an unfair dismissal case of yours was vacated during this period, you might want to consider whether you and your client are in a position to adapt the bundle and other materials to an electronic format to enable the remote hearing to take place. You should also consider the other factors we have highlighted below, to consider whether there are any other features of your case which militate towards or against virtual determination. If you consider that your matter cannot be progressed at this time (remotely or as a hybrid remote / in-person mix) you should liaise to agree a way forward with the other side where possible, and inform the Tribunal of this and your reasons without delay. Preparation for such cases can and should be underway in June and should seek to narrow the issues as much as possible to enable the most effective use of tribunal time in the remote hearing.
The Road Map also informs us to expect some in-person hearings (subject to social distancing) most likely in short-track cases and open PHs (to begin with) in July and August, as well as some hybrid cases, that use remote attendance for some participants, and in-person attendance for others.
It is stated to be “unlikely that many open track cases will be heard in July and August…” [emphasis added] and this is likely due to the fact that the non-legal members of Tribunal panels will only just be receiving training on CVP during that time. Again, if you have a case listed during this period, you should start to make provision now for the matter to be heard remotely or consider how it can best be determined, be it a hybrid of remote and in-person attendance. If you consider that it cannot be appropriately determined remotely (or partly remotely) during this time, you should write to the Tribunal without delay to inform them of your views on this. Preparations for these hearings, and adaptations to enable a hearing to take place during this period, should be going ahead during June also. You will need to consider whether the adaptations that are necessary can be achieved in that time. In most cases this should be possible.
Phases 3 and 4: Mid-September onwards
From this point onwards, Tribunals aim to hear a greater number of open-track cases, as well as less complex hearings of all kinds, using CVP exclusively, or requiring in-person attendance, or a hybrid of the two. As these are the cases with a longer lead time in any event, preparations to make them viable as remote hearings/hybrid hearings can also effectively be taking place now.
Factors relevant to deciding how best to progress a matter
Whilst we await any guidance or practice direction as to the factors which will be deemed relevant when determining which matters should be heard remotely or in-person and when, we have anticipated these in a non-exhaustive list.
These factors have been drawn from other areas of law (e.g. the Commercial and Family Courts) as well as our experience of employment proceedings more generally, and some hints in the Road map itself. They are as follows:
Is the Tribunal set up with the correct technology? If not, and the parties are ready to proceed, might it be possible to transfer the matter to a Tribunal that is ready?
Does the relevant Tribunal have adequate Judicial resources? The Road Map informs us that Fee-Paid EJs will be deployed in greater numbers, but the specific availability at a particular hearing centre at the time of listing will vary.
The wishes of the parties. Do all parties agree on the same method of determination and the timing of it? If not, EJs will be alive to whether a party’s position is tactical (i.e. a Respondent seeking to avoid / delay paying remedy damages) or based on legitimate factors. Ultimately, it is however a judicial decision, not one the parties can themselves agree / decide.
The financial value of case. Higher value cases may justify greater expense on arrangements and bundles etc. to permit an efficient remote hearing, thus enabling a matter to be determined virtually.
Impact of delay on parties. If a party seeks to delay a matter to a time when an in-person hearing might be more likely, the Tribunal will need to consider the impact of delay on all concerned. The position of individually-named Respondents and Claimants in particular should be considered. This factor is likely to be most relevant in cases where there is an ongoing employment relationship.
Are the parties (or any of them) professionally represented? The Tribunal will need to consider the impact of any inequality of arms in the context of remote determination. For example, it will need to consider whether a litigant in person will be able to understand the proceedings and participate effectively if all parties attend remotely. Another relevant consideration is that having professional representation (even for just one party) may enable the matter to be adapted to remote determination where the represented party adopts a cooperative approach with the other parties. Recall that the overriding objective requires parties to cooperate with each other, as well as the ET. Thus, for example, a represented Respondent may adopt the burden of preparing electronic bundles and statements (and any other matters) to enable all parties to participate effectively.
Resources of parties to satisfy requirements for remote hearing. This is closely linked to equality of arms, representation and (most usually) value of the case. However, even in cases where a party is not represented and where a case is low value for example, the Tribunal may consider it appropriate to expect greater involvement / action from a better-resourced party to assist in preparing a matter for a virtual hearing. The tribunal will also be conscious that familiarity with the technological requirements will represent a further inequality of arms which must be addressed.
Witness evidence:
Volume of witness evidence / number of witnesses. The greater the witness evidence, the more likely that an ET may seek some in-person attendance. Thus, whether the parties can co-operate to streamline the evidence will be an important factor.
Are the witnesses testifying to facts or are they expert witnesses? Experts’ evidence might be best received by written reports (and/or joint position statements / questions where there are multiple experts in a case). ETs are more likely to wish to have in-person attendance for the most key / critical witnesses of fact.
Does the case turn on credibility of witnesses of fact? If so, there is a greater likelihood that an EJ might prefer in-person attendance from relevant witnesses.
Complexity of the case:
Number of issues in contention. The more complex a matter, the more likely it is that some in-person attendance may be required. Parties should consider if the issues can be narrowed by agreement. Is every point in the list of issues genuinely an issue or might the parties be able to agree that some matters are not in contention?
Length of hearing. Longer matters may be more difficult to determine exclusively remotely. It has been noted by psychologists that people suffer from “screen fatigue”. We also know, from other jurisdictions, that courts cannot get through the same volume of work in a virtual hearing as they can as in the same period of time spent in a face to face hearing. A matter originally listed for 10 days may need 12-13 if being done fully or partly by CVP.
Volume of papers and accessibility / functionality of electronic bundle.
Nature of matter at stake:
Is time of the essence? Some matters (such as those in the priority class listed under question 10 of the FAQs) will need to be determined swiftly. If this is during a period of strict or partial lockdown, there may be a pressing need to determine the matter remotely even if this would not be ideal in other situations.
Sensitivity of case: EJs may feel it inappropriate for certain matters (or certain witnesses in certain matters) to give evidence remotely. For example, one can see a qualitative difference between say wages / money claims and sexual harassment claims. In the latter, the EJ may wish to see some witnesses face to face.
Whether participants would face issues with either method of hearing (virtual or in-person) due to:
Disability / other vulnerability
Lack of access to technology or other resources
Being overseas in some form of lockdown or unwilling / unable to travel due to quarantine or health risks
Lack of ability to use technology for any reason
Language barrier / need for an interpreter
Care responsibilities / shielding during lockdown (cannot attend in person)
Ensuring public access / open justice. In other jurisdictions, provision has been made for minimising the negative impact on open justice caused by remote hearings. Where EJs sit in an open ET, but other participants attend by video, this will not have much impact, and the public will be permitted to attend the ET in the normal way, subject to social distancing rules. However, where all parties attend remotely, some ways in which open justice could be promoted include:
Allowing public to join the hearing remotely (following publication of cause lists in advance so that the public know what matters are being heard and can access / request the link);
Providing transcripts of hearings;
The ET making and providing a recording of a hearing to be listened to in a court building where appropriate;
Publication of the outcome of hearings, orders or results; and
Access to hearings and information to accredited media, such as the provision of listing and results information via email.
Some of these are more radical than others, and we await the Presidents’ Practice Direction on remote hearings, which we are informed (in the Road Map) will address public access. Ultimately of course, ETs will have to be guided by the overriding objective and any specific factors that arise in any given case. In a future blog we will address some of the adaptations that preparing for a case which can be heard wholly or partially remotely will require.
If your firm would be interested in a webinar on the topic of remote hearings, please contact the clerks team by email: clerks@cloisters.com or by telephone: 0207 827 4000.