Employment tribunals and remote hearings – avoiding embarrassing profile pictures and other top tips
Nick Newman, Principal Associate takes a look at employment tribunals during the pandemic and outlines some top tips to help prepare.
Many employers and employees alike will have seen various articles in the press relating to the difficulties facing the employment tribunals at the present time, including a significant backlog of claims and the expectation that some hearings will not be heard until at least 12 months after claims are presented. In some cases, the delay can be much longer.
We are also seeing delays in dealing with various applications. The tribunals are incredibly busy and only have limited resource. This means that it can take longer for applications to be considered which can impact upon case preparation. We must do the best we can in the circumstances.
Steps in the right direction?
It is not, however, all negative. We are seeing some cases progress through the system much quicker than expected and in some circumstances we are even seeing cases that were originally listed in 2022 now being considered for re-listing this year.
Action is being taken to improve the situation.
New employment judges have been recruited (who are highly skilled and specialised, as opposed to the coverage in The Times recently which appeared to suggest that any old Tom, Dick or Harry could apply).
Hearings being conducted either entirely or partially via video-conferencing are now commonplace.
There are, in our view, steps in the right direction being taken and one result of the COVID-19 pandemic has been the (relatively fast) rollout of new technology which will now be here to stay in some form or another.
Even post pandemic, it seems very likely that remote hearings being heard via video-link are here to stay for some types of claims. In our view, they work especially well for more straightforward claims such as unauthorised deductions from wages claims and the more straightforward unfair dismissal claims.
They serve a useful purpose by increasing efficiency and moving towards a paperless (or at least paper-lite) process, but most advocates would probably say that there is no substitute for cross-examination being ‘in person’ in an ideal world, and that it remains difficult to replicate the evidential value of closer interaction in person within the ‘normal’ tribunal setting.
That said, that particular preference does seem likely to diminish over time as we all get much more used to the new world order and we must remember that the use of video has been prevalent in other court settings for some time. The more technologically-adept advocates in particular, but others too, will no doubt welcome the reduced travel time and fewer overcrowded waiting rooms.
Delays are likely to remain an issue for some time but every cloud has a silver lining. The prospect of having to wait longer for a resolution via the tribunals does appear to give rise to an increased willingness to look at resolving matters early or even without litigation in the first place.
Many respondents and claimants would much rather resolve matters quickly and move on with their business/lives and this increases the likelihood of positive settlement outcomes at the early conciliation stage or in the infancy of proceedings.
But what about those claims that will, for a variety of reasons, always ‘go the distance’? There are a number of factors which are worth noting.
Firstly, get organised. All hearings need careful planning and remote hearings perhaps more so. Electronic bundles must usually be submitted in advance of the hearing, so gone are the days of watching another solicitor or barrister in the waiting room struggling with papers that have just emerged from the ether and are being added to the bundle last minute. Parties should expect a much stricter approach from the tribunals with regard to applications to introduce documents or other evidence late. Similarly, relying on postponement applications being granted is a risky approach.
Secondly, get organised. It is worth saying this twice! In addition to the bundle and witness statements, there are a host of other matters that need early consideration. Will anyone need any adjustments? Will anyone need IT equipment providing? Two or more screens are really useful for example, one for the video-link, one for the bundle, another for witness statements etc. Will anyone need the use of office space (COVID rules allowing of course). The list goes on.
Thirdly, check your tech. And then check it again. Whilst system glitches and frozen screens do happen on occasion, the more that can be done to ensure a smooth-running hearing, the better. And on the subject of checking your tech, let’s ensure comedy log-in names and embarrassing backgrounds are avoided. A quiet room, good lighting, only water to drink, no distractions: this is what we should aim for as a minimum. Remember that a virtual tribunal is still a tribunal; a formal setting which warrants formality and a professional approach.
Fourthly, when checking your technology, you will have ensured a good connection with the tribunal but also consider how you will engage with clients / colleagues / witnesses as well. Parties are likely to need separate channels of communication, perhaps using a WhatsApp group as the more modern alternative to passing post-it notes around the Tribunal room. Care must be taken to ensure that anyone who is giving evidence (or is due to give evidence in Scotland) is excluded from said group. In our experience, early dialogue on how to deal with this valuable communication proves to be time well spent.
And finally, there’s always the odd video-conferencing faux-pas: don’t forget to change your ‘filters’ if you have set yourself up as a furry animal on Zoom! For those of you who don’t get this, just Google it!