Remotely Just or Just Remote?
Forgive the play on words above – I couldn’t resist the opportunity.
Despite my rather unfair title, the Present of the Employment Tribunals in England & Wales has issued what seems to be a very sensible Direction & Guidance which came into force on 14th September 2020 to address the difficulties of ensuring open justice whilst continuing to respond to the coronavirus pandemic
The Guidance identifies the anticipated tidal wave of cases which tribunals will have to grapple with as a result of the backlog of cases arising from earlier responses to the pandemic and, for those of you not already wearied by my blogs in the middle of the year, the fallout from the Coronavirus Job Retention Scheme.
What is very welcome for those who have experienced the difficulties of remote contested hearings, is the acknowledgement at paragraph 3 of the Guidance –
“Remote participation in a hearing may, in some cases, enhance access to justice… however, where a case before the Employment Tribunals involves disputed evidence and there is a need for parties and their witnesses to be asked questions, a hearing held in person is usually the best way to experience the delivery of justice”
What Rules are Likely to be Relevant
The Guidance identifies rr.41, 46, 53 and 57 on the tribunal’s powers to regulate its own procedure, to hold hearings wholly or partly by electronic communication alongside the scope or preliminary and final hearings are the likely go tos for practitioners.
The Options for hearings are set out broadly into three categories –
- Wholly remote;
- Partly remote (i.e. contested evidence in person, submissions and judgment via CVP); or
- In person (President’s Direction paragraph 5.1 – 5.3 & 6.1 – 6.4)
Discretion as to Which Method
The Guidance reminds that the choice of method of hearing is a judicial one which can be decided on receipt of the claim, following initial consideration under r.26, at PH case management under r.53(1)(a) or at any stage on receipt of correspondence or on the tribunal’s initiative.
Although not limiting the factors a tribunal will take into account when deciding hearings, further to matters in the “Good Practice for Remote Hearings” section of the Equal Treatment Bench Book, the Guidance at paragraph 16 and 17 indicate the general and specific favours likely to apply –
“16.1 The availability of enough space in safe, clean and risk-assessed venues, having regard to distancing measures required to ensure public safety;
16.2 Whether safe travel to the Employment Tribunal venue is possible, especially for those using public transport;
16.3 The availability of suitable hardware and software for use by the tribunal in the conduct of remote hearings; and
16.4 The availability of HMCTS staff to support remote hearings.”
“17.1 The length of the delay that will likely result if the hearing of the case is to be held in person rather than remotely;
17.2 The personal circumstances, disability or vulnerability of any participant, including whether a litigation friend or interpreter is required. In some cases, they will mean that an in-person hearing (or a partly remote hearing with this participant in attendance at the venue) may be fairer because it allows for more effective participation. In other cases, for example because of clinical vulnerability or shielding, or because of the risk associated with using public transport to travel to the venue, remote participation may be fairer;
17.3 Whether the parties are legally represented, which may favour holding the hearing remotely;
17.4 The ability of any participant to engage meaningfully with a remote hearing, which includes access to and familiarity with the necessary technology; and
17.5 Whether the nature of the disputed evidence is such that fairness and justice require it to be evaluated by the tribunal in a face-to-face environment”
We are told at paragraph 15 of the Guidance of an anticipated change to the ET1 and ET3 which will allow for the Parties to indicate whether they have the means to participate in remote hearings
Obligations on Practitioners
Paragraph 19 of the Guidance obliges practitioners to explore issues with witnesses’ including -
- ability to give evidence remotely (including being free from disruption during the hearing);
- to have a suitable device and knowledge of logging in details,;
- knowledge they must not let anyone guide or prompt their evidence;
- that they remain under oath during adjournments;
- that it is illegal to broadcast the hearing;
- that they must have the oath or affirmation available to them;
- that the relevant papers (their statement and bundle) will be before them;
- ensuring an immediate point of contact for each witness for the hearing (phone, email etc)
I have a feeling the above responsibilities, whilst entirely necessary, will lead to a number of costs applications and am aware of costs orders made where bundles were not given to witnesses in the civil courts in relation to remote hearings.
I recall a matrimonial case a few months back when I had google search and administer the oath myself for the judge during a telephone final hearing as nobody had the wording to hand.
Electronic documents are said to be preferred – I am acutely aware of the final in person hearings I had done since restrictions were eased in which judges have expressed a preference for paper bundles (on one occasion requiring me to give my copy of the Claimant’s statement to the judge as his counsel had not brought any paper copies) and this is addressed by paragraph 25.1 of the Guidance which requires both paper and electronic copies for hearings.
Paragraph 24 of the Guidance provides that if at least one party is represented then bundles & statements should be lodged in PDF Form –
- pages containing pictures of text should have been subject to ‘optical character recognition’ (use of a computer program to identify the words so they can be copied and pasted);
- an index or table of contents should be prepared;
- pages should be the right way up (something yet to be mastered in many paper copies);
- pages should be renumbered so that they correspond to the automatic PDF system;
- all significant documents (i.e. dismissal letters) are bookmarked;
- the tribunal is to be consulted about further documents for addition after the bundle is sent;
- if the bundle is larger than 20MB and thus too large to send in a single email, parties should contact the regional office to explore alternative methods of delivery;
- When sending a bundle the email should include the case number in the subject heading, the shortest comprehensible version of the case name, hearing date and “remote hearing”
- Paragraph 10.2 of the Direction resurfaces the part of the Case Management Guidance requiring a spare copy of the tribunal papers be brought to hearing should members of the public wish to inspect them (if two or more attend even if papers are brought by gloved hand, how cross-contamination will be avoided is going to be a tricky topic)
Buried in the detail is a requirement for witnesses to have a separate set of documents for each witness unless arrangements are made for each to be gloved (paragraph 30.1 of the Guidance)
Face covering is advised in public areas although use of masks for giving evidence in hearings is left to the discretion of the judge hearing the matter (paragraph 32)
The Direction provides that members of the press shall be able to attend hearings remotely by contacting administrative staff preferably by email.
Paragraph 9.3 provides entitlement for the press to inspect document either by the placement of a statement on the screen long enough for it to be read or by a witness reading it out or such other method determined on submissions. That is likely to play havoc with advocates time estimates.
Paragraph 11.1 & 11.3 provide for the publication of cause lists and guidance to tribunal staff on supporting the media access employment tribunals including guidance where there is likely to be high levels of interes.