If you had asked most employment lawyers – indeed, most litigators – back in January 2020 whether they thought that, within the space of two years, vast swathes of hearings would have become remote, I expect they would have laughed at you. And I also expect that many would have thought it a terribly bad idea.
Today, the landscape looks very different – both in terms of the reality (and effectiveness) of remote hearings, and the eagerness of participants to conduct their cases remotely. But not everything has been plain sailing and there remain a number of concerns about how these hearings are conducted, open justice, and the impact on those with disabilities.
When should a hearing be remote?
The Employment Tribunal generally has broad discretion to decide that a hearing should be conducted remotely. Rule 46 of the Employment Tribunal Rules of Procedure 2013 only stipulates two requirements: that the Tribunal considers that remote would be “just and equitable” and that those participating and members of the public can hear and see what the Tribunal hears and sees.
Furthermore, the Tribunal’s discretion is enhanced by Rule 41 – which provides that the Tribunal “shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective”, before going on to say that the rules that follow – including Rule 46 – does not restrict that general discretion.
The most recent ‘road map’ for the listing and hearing of Employment Tribunal cases, effective from 1 April 2022, identified a vast array of hearings – from simple case management hearings to strike out applications, judicial mediations and even some final trials – would default to remote. It is even expected the remote default this will likely become permanent in the case of preliminary hearings of all stripes.
Even so, the Judicial College’s guidance note Good Practice for Remote Hearings reminds judges that whilst there is a “natural inclination is to get [cases] heard ASAP”, this must be “tempered by natural justice considerations” to ensure hearings are conducted fairly. Furthermore, the road map merely creates defaults. It does create a hard-and-fast rule that certain hearings must be held remotely, it is more like a rebuttable presumption. The road map is clear that in some cases, particularly where there is “significant disputed evidence”, in-person hearings will be more appropriate. The Presidential Guidance on Remote and In-Person Hearings (14 September 2020) also notes that “a hearing held in person is usually the best way to experience the delivery of justice” in cases where there will be live evidence and cross examination of witnesses.
- There can be no question that the main advantage of holding hearings remotely is efficiency. Some years ago, I worked on a case where the claimant – a litigant in person – had to travel nearly three hours to attend a 45-minute case management hearing, because he had moved since leaving his former employer. No one benefits from making parties trek across the country to argue about the deadline for exchange of witness statements. Moreover, reducing the travel and waiting time associated with in-person hearings can reduce costs for our clients.
- Remote hearings can also reduce the number of last-minute adjournments. If judges from the relatively new virtual region can be drafted in to cover when there is a lack of judicial availability, hearings can be saved. Of course, this sort of cover will be more appropriate for short and simple hearings, such as case management or basic interlocutory applications. But at least it might reduce cancellations. The National Employment Tribunal User Group for England and Wales reported in September 2021 that the introduction of the virtual region had achieved just that – the virtual region had added hundreds of judicial sitting days to the calendar and allowed many hearings to go ahead that would otherwise have been vacated for lack of judges.
- Being able to participate in hearings, and particularly give evidence, remotely can be a great comfort to some litigants and witnesses, especially where they are anxious about proceedings or where there are heightened tensions between the parties. I have a case ongoing in which my client, the claimant, cannot bear the thought of being in a room with the perpetrators of the discriminatory abuse he suffered. Allowing him to attend the hearing remotely will give him great confidence. Equally, a remote hearing can allow the Tribunal to make reasonable adjustments for disabled participants. For example, the Equal Treatment Bench Book gives the example of someone who suffers from Alzheimer’s and is only lucid during limited intervals. Allowing them to give evidence remotely or by a recording during such an interval will likely be of huge assistance to all involved.
- Careful thought needs to be given as to what effect a remote hearing might have on access. First, whilst a remote hearing could help people with disabilities, it might also be harmful. In a recent case I worked on, the claimant’s mental health conditions clearly made it more difficult for him to communicate and make his case by video. In another case, a party’s deafness meant that he needed to be in the Tribunal where he could make use of the hearing loop. Second, we should not presume that litigants and witnesses have access to the technology needed to conduct a remote hearing – and they may not raise this until it is too late. Often that means not just having access to a device to attend the hearing virtually – which can, in a pinch, be a mobile telephone – but also having access to a second device to look at papers and statements during evidence and submissions. The Good Practice for Remote Hearings guidance warns judges that they must not assume people have access to the required technology and that there can be disparities “based upon socio-economic factors, age and disability”.
- Remote hearings are only ever as good as the technology they are run on. After a stuttering start, CVP now seems to be a relatively stable platform – although all indications are that it will be phased out in favour of the new Video Hearings Service (or, rather amusingly for those of us who can remember the 1990s, VHS). However, these systems are not without their flaws, which can cause frustration and slow down proceedings. Most of you reading this will have experienced CVP failing in some way, causing the hearing to be adjourned to a later date. All that does is increase costs, entirely eclipsing any minimal savings that have been made by not having to travel to the hearing centre. Equally, a video hearing over the internet will only ever be as smooth as the slowest person’s connection.
- Preserving the integrity of the hearing is vital. Early in the pandemic, I attended a telephone trial (fortunately, largely a thing of the past now) during which I could hear a witness’s husband correcting her answers throughout my cross-examination – clearly a big problem. When in-person, we know who is in the room and what papers a witness has in front of them. Remotely, that is harder to police. And whilst we are considering the integrity of the process, it is important to remember that the principle of open justice lies at the heart of our legal system. In the old days, a person could walk into the Tribunal building and into any hearing that was not sitting privately. Now, a would-be observer needs a link – which certainly reduces the ease with which hearings may be observed.
The Ugly (or: extra things to think about)
- Many of the issues with remote hearings – including whether the hearing is to be remote at all – can be managed if they are addressed early. So be sure to raise the format of the hearing at the first case management hearing (and in advance with your opponents), and be ready to respond if the Tribunal, of its own volition, converts a hearing late in the day.
- Make sure witnesses are properly prepared. A remote hearing can be draining, and can leave litigants feeling very isolated. Equally, lay participants should be reminded a remote hearing is still a formal event, something that is sometimes forgotten. I once had a witness attend a video hearing in her dressing gown, which did not impress the Tribunal.
- Set up a robust channel of communications. There can be no note passing on CVP, so I tend to favour a WhatsApp group, as alerts can be delivered directly to my laptop. That said, you might want to think about establishing a gatekeeper to filter what is passed on – it can be hard to concentrate if members of the group are sending you a new comment every few seconds.
There can be no doubt that remote hearings are here to stay – and indeed the 2022 road map anticipates that the remote default for some types of case will become permanent. That has to be a good thing. It allows some hearings to be held efficiently, in better time and potentially at lower cost. As the current road map put it, “There can be no return to the pre-2020 ‘normal’ in the Employment Tribunals.”
But remote will not be suitable for all cases, nor will it become the default for everything: at the September 2021 User Group, the Employment Judge Barry Clarke told the meeting that “he did not wish the Employment Tribunals to become a video jurisdiction; it was important that in-person hearings remained a common feature of the administration of workplace justice and not simply an aspirational gold standard”.
Therefore, whilst conducting preliminary hearings in the peculiar combination of shirt / blouse and pyjama trousers might continue, don’t throw away your court shoes just yet – because it seems likely that longer hearings will increasingly be heard in-person once again.
This article was written by Tim Goodwin, a tenant of 12KBW and a member of our Employment Steering Committee and co-editor of this blog.
A modified version of this article appeared in the July 2022 edition of the Employment Lawyers Association Briefing.