What’s happening about Employment Tribunal hearings during the pandemic?

In response to the coronavirus situation, the Presidents of the Employment Tribunals previously issued a Direction that all hearings where parties were expected to attend in person which had been listed to commence on or before 26th June 2020, would be converted to a case management hearing by telephone or other electronic means which would take place on the first day allocated for the hearing. The situation was due to be reviewed on 29 April 2020, and that review has now taken place.

The Presidents of the Employment Tribunals also produced a list of “FAQs arising from the Covid-19 pandemic” which is due to be updated in light of the review on 29 April 2020.

It may not come as a surprise that the outcome of the review is that the Direction remains in force in its current form. This means that all hearings listed up to and including 26 June 2020 will remain as case management hearings and conducted by telephone or other electronic means. Our experience is that telephone hearings are the preferred method, although some Tribunals have also been using Skype for Business.

Hearings from 29 June 2020 remain listed in whatever form scheduled which potentially indicates a lifting of lockdown measures in the not too distant future. The parties and representatives in these cases will be contacted so that an assessment can be made by an Employment Judge of the most appropriate method of conducting the hearing.

The difficulty of course is that Employment Tribunals had a significant backlog of cases before the pandemic and this had already led to lengthy delays in cases being heard (hearings were already being listed for well over 12 months’ time). All of the cases that would have been heard during the lockdown period will eventually need to be rescheduled into case lists which are already bursting at the seams.

It remains to be seen what methods for conducting hearings will be used but it is possible that hearings could go back to being entirely in-person, presumably with appropriate precautions being taken. We would expect a cautious approach to be adopted in the early stages and where appropriate, perhaps certain hearings could be conducted entirely by remote means, or a combination of some parties being present at the hearing venue and some appearing remotely. There are of course some of the Tribunal’s cases which could potentially be dealt with remotely, but in our experience they are very much in the minority. We believe that especially with unrepresented parties it will be very difficult indeed for the hearing to be conducted properly in any other way than in person. The wishes of the parties and their witnesses will clearly need to be taken into account and decisions made based on the interests of justice and the need to protect the health and safety of all concerned. The Direction specifically states that the parties remain able to make any application to the Tribunal that they consider appropriate at any time, including an application to adjourn proceedings.

A further review of the Direction is due on 29 May 2020 and by then, we expect that the Government will have made an announcement on its plans for gradual lifting of the lockdown measures – those will no doubt heavily influence the decisions to be made during the Tribunal’s next review.

On a separate note, the President of the Employment Tribunals in England and Wales has issued Guidance on the treatment of vulnerable parties and witnesses in Tribunal proceedings. In short, it states that both the Tribunal and parties should consider whether a person’s participation in the proceedings is likely to be diminished because they have a vulnerability. If so,  the Tribunal will need to consider whether it is necessary to make directions or orders as a result. This could for example, lead to a witness giving evidence from behind a screen if appropriate (so that they cannot be seen by and do not have to see another party in the proceedings).

The guidance is not strictly speaking binding on individual Tribunals, but it is expected to be followed where it is in keeping with the Tribunal’s ‘overriding objective’ to deal with cases fairly and justly.