At a time when our health is under the spotlight, it seems also apt to spare a thought for the health of a system which has been particularly struck by COVID-19: the Employment Tribunals. Even pre-COVID, the Employment Tribunals were creaking under the weight of under-resourcing. The additional complication of adjusting to lockdown, social distancing and a virtual format has meant that access to justice has taken an inevitable blow.
The prognosis is not all bad, however. New measures have been implemented with the hope of giving the Tribunals a much-needed boost, such as allowing non-employment judges to sit as Tribunal judges and shifting certain administrative legal tasks from over-burdened judges to legal officers, although query just how much spare capacity exists in the wider judiciary and Tribunal staff in general. Additionally, the adaptations made for virtual hearings are likely to result long term in a much more technologically savvy Tribunal system. This could bring its own efficiencies in time which, combined with a greater focus on conciliation and judicial mediation, will hopefully have positive lasting effects.
In the interim, however, there are challenges to contend with. This blog post will offer some practical tips for those facing Tribunal claims over the coming year.
Practical pointers for coping with the "new normal"
In a "choose your own adventure" style blog, the practical tips for navigating the "new normal" sit behind two doors:
- Behind door one you will find your wider strategic considerations and the decisions that you take about cases which may not have even reached Tribunal stage yet.
- Door two is the virtual Tribunal door and contains the more frontline practical issues associated with virtual and hybrid hearings.
Door one – the path to (or away from) the Tribunal
1. Justice is unlikely to be swift so be open to alternatives
Expect long lead-in times for everything, from an acknowledgement of claims right up to the final hearing. Parties need to consider what this means for them in terms of costs and energy.
In employment disputes, time and money are almost always on the employer’s side. Employees frequently have financial, emotional and practical pressures which tend to favour a faster resolution (such as cash flow issues, a desire for closure and that awkward moment taking time out from a new role to pursue a claim against a former employer). However, for employers too, a delay is going to have an impact on costs and management time, and there is a risk of losing witnesses or the witnesses’ memories fading. These pressures are magnified several times over by COVID-19 delays and the wider economic challenges.
As a result, there is potentially more incentive on both sides to settle early. Parties are using judicial mediation more, both of their own volition and because the Tribunal itself is pushing this route to try to clear their cases. The judicial mediations we have seen have been remote and Tribunals have been able to schedule them quite quickly. Typically, there is a central video call room (for example on Teams) which the judge requests parties to enter or leave throughout the day. This approximates the experience of the judge shuttling between the parties in different rooms in the Tribunal. For both parties, this environment can help to provide momentum for settlement which tends not to be felt when phoning and being phoned by an ACAS conciliator.
A reminder that from 1 December 2020 all parties will have the maximum period for early conciliation simplified to last a uniform six weeks. This replaces the old system of a one-month early conciliation period with the potential for a two-week extension where there was a prospect of settlement. This is intended to streamline the process, although it might inadvertently remove some of the psychological time pressure which can be helpful in maintaining momentum towards settlement.
2. Beware of gambling on an adjournment, vacation or relisting
Do not assume that the Tribunal will be amenable to an adjournment application simply on the basis of COVID-related hurdles. Oxford University recently fell into this trap. Having last year found that the University had unlawfully discriminated against a professor by dismissing him under their compulsory retirement age policy, the Tribunal listed a remedy hearing for September 2020 to consider the professor’s application for reinstatement. The University failed to comply with case management orders, including failing to submit witness evidence until the day before the hearing, on the assumption that their application for an appeal in the main claim and the COVID context would precipitate an adjournment. They were wrong: the hearing went ahead as planned and the Tribunal excluded almost all their evidence. The professor succeeded in his application.
3. Organisation is key
In the current climate, accessing papers is likely to take more time, so it pays to be organised. Whilst it is often not possible to avoid last minute document disclosure, finalising the bundle in good time before the hearing will save a lot of hassle. Last minute additions to bundles of documents will be much more challenging, especially if some people have hard copy bundles, others have electronic bundles and/or parties are in multiple locations.
4. In-person, hybrid or remote?
The Employment Tribunals have been hosting some in-person and hybrid hearings, the latter being a hearing with some parties attending in-person and others tuning in remotely. Parties should consider whether they have specific needs for hearings to be in-person or remote, and there may also be strategic advantages (or disadvantages) to factor in.
The wellbeing of the attendees is key, so raise any concerns early, so that appropriate applications can be made to the Tribunal (for example, if someone is in a vulnerable category for COVID purposes, it may not be appropriate for them to give evidence in-person: equally, there may be health or disability considerations which mean a witness may be more disadvantaged giving evidence remotely than in-person). An option for remote attendance can also be helpful for geographically disparate witnesses.
In terms of strategy, in-person cross examination can potentially be far more effective. As skilled as your barrister may be, the virtual medium can make it difficult to apply pressure. There is no eye contact or sense of immediacy. There have been examples of witnesses who are feeling pressured under cross-examination appearing to disappear suddenly due to a “bad connection”, then reappearing much more composed five minutes later. Equally you may feel that the complexity of matters involved in the claim or the nature of the documentary evidence would benefit from being unpicked in-person, where it can often be easier to guide a judge through hard copy documents.
Door two – entering the Tribunal (albeit from your lounge room)
1. The virtual courtroom is a formal setting
This may seem an obvious point, but the fact that attendees are tuning in from their sofa might subconsciously induce an ill-advised casualness. The hearing is still a formal one, so the usual protocols apply. For example, witnesses will be under oath in the usual way and should not discuss their evidence during an adjournment or have anyone guiding their responses. Witnesses should dress smartly and avoid where possible the participation of curious pets. Refreshments should be limited to water.
2. Triple check the tech
Technology is bound to malfunction from time to time and the Tribunal understands this. However, in order to keep difficulties to a minimum, it is essential that attendees spend some time in advance of a remote hearing checking the technology. The courts use their own Cloud Video Platform (CVP), as well as sometimes relying on general platforms like Skype, Zoom and Microsoft Teams. Make sure to read the joining instructions carefully and have the correct platform downloaded.
Try to minimise interference with your connection, where necessary politely asking the other members of your household to postpone their Netflix binge.
Multiple screens are helpful if the hearing involves electronic papers, allowing reference to those papers without losing sight of the call. Finally, be wary if you use the platform for informal use – logging in with a comedic name and/ or background could be received badly by a judge (and has certainly happened!).
3. Have a separate communication channel
If your party involves several attendees in different locations, it is advisable to have a separate communication channel. This facilitates the exchange of notes akin to a normal hearing, for example on available dates for a subsequent listing or to alert the judge if someone drops off the call. Although do bear in mind that counsel will not be able to take in a barrage of messages while giving submissions.
4. Consider your delivery
It has always been imperative for witnesses to communicate clearly. This is even more challenging in a remote environment. Speak slowly. If there is an echo, ask other attendees to mute themselves while you talk.
If you require further information about anything covered in this blog, please contact Charmaine Pollock, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, November 2020