Rosie Kight provides a detailed guide to developments and guidance in relation to employment tribunals.
In recent days, the Presidents of the Employment Tribunals of England and Wales and Scotland and the President of the Employment Appeal Tribunal in England and Wales have provided guidance and directions to Tribunal Users, in response to the Covid-19 pandemic, on plans for how they shall operate during the coming weeks.
NO MORE IN-PERSON HEARINGS
The focus of this note is on proceedings in the Employment Tribunals, but the overall position, in summary, is that for the time being in-person hearings are no longer taking place.
- In the ET’s:
- From 23 March 2020: all in-person hearings (including those which are already in progress on 23 March 2020 and not already addressed) to be converted to a case management hearing by telephone or other electronic means, to take place on the first day allocated for the hearing
- If the existing hearing is multi-day, then the parties are to assume that the remaining days have been cancelled
- The purpose of these hearings is to apply the Presidential Guidance (see below) and establish if and how, in furtherance of the Overriding Objective, claims can continue to be heard
- Where parties consider that hearings already fixed which have not already been converted by the Tribunal, could be dealt with via telephone or other electronic means they should notify the Tribunal as soon as that becomes clear
- Parties to send communications to the Employment Tribunals electronically wherever possible
- In the EAT, between 23 March 2020 and 9 April 2020:
- Parties are not required to attend the EAT in person but must ensure that the EAT has their telephone contact details and may be asked about their ability to participate in hearings via Skype
- All full hearings listed to be heard with all parties present in person to be converted to a telephone Appointment for directions (subject to further direction in individual cases), to consider:
- The possibility of a remote hearing (via Skype or other electronic means)
- Any other relevant matters
- All Rule 3(10) Hearings and Preliminary Hearings listed to be heard with one or more parties present shall be heard by telephone
Considering the Presidential Guidance in detail
The Overriding Objective
The Overriding Objective, set out in Rule 2 of the Employment Tribunal Rules, is essentially the North Star of the Employment Tribunals system. It enables Tribunal’s to deal with cases fairly and justly and Employment Judges are required to have it at the forefront of their minds when deciding how to manage and decide cases. The Rules are to be interpreted with reference to it and the powers conferred on Tribunals by the Rules are to be exercised in accordance with it. It also requires that the parties to proceedings, and their representatives, co-operate with each other and the Tribunal. It is this spirit of co-operation which the Presidents of the Employment Tribunals seek to harness in identifying a path through this difficult situation.
What the Rules say about conducting hearings by electronic means
Rule 41 provides that a Tribunal can regulate its own procedure and conduct a hearing in the manner it considers fair, having regard to the principles contained in the overriding objective.
Rule 46 makes provision for hearings to be conducted, in whole or in part, by use of electronic communication provided of course that it furthers the overriding objective – the Tribunal considers it just and equitable to do so – and, where a hearing is to be in public, members of the public can hear what the Tribunal can hear and see any witness as seen by the Tribunal.
The practical reality
The Tribunals are well used to:
- Dealing with online and electronic communications;
- Setting up telephone case management preliminary hearings;
- With notice and following a specific application to do so, using video conferencing and telephone facilities to hear evidence in full-merits hearings or where there is otherwise live evidence to be heard, from witnesses unable to attend in-person in exceptional circumstances;
They have also, thanks to steps taken since 2017 to modernise in light of government consultation, started to benefit from improvements in their use of technology, with the digitalisation of case files for example.
However, the reality is that the Employment Tribunals are not logistically ready to convert to entirely remote and electronic working at the flick of a switch and nor would it be just and equitable for it to do so. Not all Employment Tribunal Offices and hearing centres have ready access to video conferencing equipment. Not all of the documentation they receive is currently capable of being transformed into a digital format and in addition, a large contingent of Tribunal Users are litigants in person and lay-representatives, for whom electronic communication or remote hearings may be more difficult.
What does this mean for ET Users in the short term?
Preliminary Hearings converted from in-person to telephone
As above, the Employment Tribunals already conduct a great many telephone case management preliminary hearings, in private, mainly where both parties are professionally represented. Expanding these hearings to include litigants in person and non-professional representatives would appear to be a just and equitable step to take. Certainly, in the short term, the Tribunals are converting substantive hearings listed in the coming weeks to telephone Case Management hearings to address how those cases (which will already be prepared for the full hearing) might be able to proceed.
To address any imbalance to the parties and to assist litigants in person, Tribunals are likely to get stricter on and re-emphasise the importance of completing agreed Case Management Agendas and Lists of Issues and may also include further information for litigants in person on these documents and more generally when sending out Notices of Hearings.
Tribunals may also go further and make initial Case Management Orders requiring that specific steps are taken, in addition to the completion of the Case Management Agenda, prior to a telephone Case Management Hearing. For example, requiring the parties to set out and share questions they have about the claim/response and prepare responses to them, in advance of the telephone hearing.
Preliminary Hearings by “other electronic means”
At one end of the spectrum, for more complex preliminary hearings, where there are preliminary issues to determine (such as time-limit points, applications for strike out or deposit orders, or disability) this could mean the use of Skype or other forms of video conferencing to conduct hearings.
At the other end, for those cases which would otherwise have had a Case Management Preliminary Hearing (either by telephone or in-person), but which are relatively straight forward, Employment Judges may decide to consider the pleadings without the input of the parties and make Case Management Orders/summarise the case subject to comment by the parties via email.
In between these two bookends are cases where Employment Judges might, after having read the pleadings, write out to the parties with those questions which they would otherwise have asked the parties orally, in order to identify the claims and the issues. Following receipt of those responses, it may be possible for Case Management Orders to be made without further recourse to the parties or there may be a need for a telephone case management hearing where there are difficulties.
Substantive Hearings by electronic means
As above, substantive hearings already listed to take place in the coming weeks, or are part-heard are being converted to telephone case management hearings and in respect of these and potentially hearings which are yet to be listed, parties and Tribunals are going to have to consider, in seeking to apply the overriding objective, whether and if so how substantive hearings might be conducted by telephone or video conferencing.
To assess this, key questions which may need to be addressed (either on a telephone case management hearing or by email) could be:
- If this is a case which is suitable for an electronic substantive hearing in full or in part, do the parties have the capability (logistically and skills-wise) to be able to conduct their respective cases in that way?
Professional representatives are likely to have the electronic means and capabilities to be able to conduct appropriate hearings remotely. However, litigants in person or non-professional representatives may not have access to electronic devices with the capacity to dial in to a video conference, for example. Similarly, although it will no doubt present challenges, professional advocates are adept at adapting to work over the telephone or via videoconference, whilst other less-experienced individuals may struggle.
- Is this a case where witness credibility will be the principal determinative factor, or is this a case which is more about the interpretation of the law to largely agreed facts?
Clearly, it would be much easier for the latter type of hearing to be heard remotely by electronic means than the former, which it may be possible to hear via video conferencing but would be at greater risk of postponement until such time as a hearing in-person can take place.
- Are there any preliminary matters which can realistically be hived off and dealt with through submission/limited evidence by telephone to narrow the scope of the claim, or focus the parties’ minds on the wider merits of the case?
This is almost always something which is considered at preliminary hearings, but whereas there may previously have been a desire for matters all to be dealt with at one hearing, particularly when addressing the preliminary matter will not remove the need for a substantive hearing altogether, the parties and Tribunal may have to reconsider this strategy in order for progress to be made and to make the listing of future hearings either in person or by electronic means shorter and narrower.
- Can the scope of factual issues in the claim be limited by the parties co-operating to produce agreed facts?
Parties co-operating to undertake this exercise could mean that cases which would otherwise require numerous witnesses and/or unwieldly chronologies can be whittled down to the key facts and issues to be determined.
In cases which have a long history or numerous allegations (of discrimination or whistleblowing detriment for example) and there are arguments about whether there is a continuing act, parties may in these extenuating circumstances take the view that it would be in accordance with the overriding objective to limit the case to those allegations which are clearly in time and/or the “strongest” allegations, in order to reduce the amount of Tribunal time needed to hear the case and potentially get the case heard without significant delay.
- In claims where bundles and witness statements have not yet been produced can their contents be limited to include only documentation/information which is essential to be able to determine the legal issues?
This should, of course, already be the case but it may be that Employment Tribunals provide Case Management Orders with strict limits of page numbers and word counts, in order to help focus the parties’ minds of the key facts/issues.
Cases which are part-heard or awaiting a return date for submissions, judgment or remedy hearing:
- Is what is left of the evidence to be heard genuinely necessary to determining the issues?
It may be that the witnesses still to be heard have very little relevant information to add to the evidence. In these cases, the parties may need to think about how important to the legal issues to be determined their evidence might be and the amount of weight which the Employment Tribunal should attach to their written statements in the event that they are not cross examined.
- Can closing submissions be provided in writing rather than orally?
Where both parties are professionally represented it would appear to be in line with the overriding objective for orders to be made for exchange and submission of written closing submissions in cases which have been listed for oral submissions.
Where one or both parties are not professionally represented, this poses more of a challenge in terms of whether it would be just and equitable to order written submissions, though consideration may be given to parties exchanging skeletons and supplementing them orally by a short telephone hearing.
- Can closing submissions or the pronouncement of judgment be done by telephone?
As above, it would appear that this alternative would be in line with the overriding objective in most circumstances.
- Is there a need for a live remedy hearing?
Where there is a remedy hearing listed, Employment Tribunals may make case management orders (if those already in place are not sufficient) to require that the parties seek to narrow the scope of what is in dispute – to agree schedules of loss to the extent possible.
Employment Judges may look to gather the information they need to be able to reach a decision on remedy via email questions to the parties.
Statutory calculations ought not to cause difficulties but where issues of mitigation, contribution or Polkey are in play, there will need to be submissions and potentially evidence. It may be that this can be done in writing and supplemented by a telephone or video call to hear evidence.
What may be more challenging could be claims for compensation for injury to feelings and/or personal injury, which may require more detailed consideration of evidence.
Telephone/Video Judicial Mediation
As ever, focus on ADR, be that via ACAS or through use of judicial resource will remain relevant and co-operation between the parties in this regard will be expected. Judicial mediations are ordinarily listed for one day in-person and there may be scope for these to be converted to telephone or video conference. It may be the case that more advance preparation is required in terms of written documentation to identify parameters through the preparation and early exchange of written position statements would assist and perhaps shorten the amount of time allocated to a mediation.
Postponements and substitution
It is inevitable that hearings will be postponed, including telephone and video conferencing hearings. The Guidance suggests that where possible Regional Employment Judges (who are expected to keep Tribunal listings under close scrutiny at this time) should consider substitutions, including at short notice where the parties are prepared to waive the usual notice requirements – again with regard to the overriding objective and the need for co-operation.
Constitution of Tribunal panels
Consideration is also to be given to whether it would be possible and in furtherance of the overriding objective for hearings which would ordinarily be heard by a full (three person) panel to be heard by a 2-person panel or an Employment Judge alone. Such changes would require the consent of the parties and may be explored at telephone case management hearings.