By Joel Wallace
For the short-term, at least, justice cannot be administered in the usual way. Present circumstances are particularly problematic for employment tribunals, which have long surpassed caseload saturation point. Thus far, the tribunals system’s journey into 21st century tech has been understandably cautious and piecemeal. However, pressing demand for hearings coupled with the inability to convene in person means that tribunals assigned to determine a matter are faced with two options: adjourn the hearing to a later date or rely on digital systems. Parties that would prefer resolution of their dispute now rather than in the distant future may find the following points useful when persuading a tribunal to take the latter option and list a virtual hearing.
Those familiar with virtual meeting platforms (eg Zoom, Skype, Teams, et al) will be all too aware of how this technology lends itself to hearings and trials. With widespread access to webcams, smartphones, tablets and laptops, litigants and witnesses are unlikely to have significant difficulty in working and adapting to the software. Moreover, superior courts and courts in comparable jurisdictions have already successfully held virtual hearings:
- The Supreme Court now performs its functions virtually. The Supreme Court heard Fowler v Commissioners for Her Majesty’s Revenue and Customs, virtually on 24th March 2020 and gave judgment virtually in Elgizouli v Secretary of State for the Home Department on 25th March 2020 (as reported by the Law Gazette here https://www.lawgazette.co.uk/practice/covid-19-lockdown-supreme-court-goes-virtual/5103603.article).
- Mostyn J recently presided over Court of Protection proceedings which involved 11 witnesses, experts and journalist attendees. The case was reported by the Law Gazette, which can be accessed here https://www.lawgazette.co.uk/practice/first-all-skype-trial-tests-crisis-working-at-cop-/5103541.article, and considered in MacDonald J’s paper entitled, “Remote Access Family Court”, which can be accessed here https://www.judiciary.uk/wp-content/uploads/2020/03/The-Remote-Access-Family-Court.pdf.
- The Family and Civil Courts have received substantial guidance on holding remote-hearings and the Family Court is now holding hearings by skype and telephone (see https://www.judiciary.uk/announcements/practice-direction-on-video-or-audio-hearings-in-civil-proceedings-during-the-coronavirus-pandemic/).
Tackling the “Open-Justice” Issue
Whilst there are a number of practical issues to overcome, the most significant obstacle to holding a virtual hearing is arguably the principle of “open justice”: the principle that justice must be done in public. The following three points demonstrate why this problem is not insurmountable:
- Under the Employment Tribunal Rules of Procedure, r 50(1) and (3)(a), the tribunal has discretion to derogate from the principle of open justice and hold a hearing in private where, amongst other considerations, the tribunal holds that the order is “necessary in the interests of justice” or to protect convention rights.
- The Coronavirus Act 2020, s 55 and sch 25 appears to envisage two circumstances in which a virtual hearing can satisfy, or go some way to satisfying, the principle of open justice:
- Where the proceedings are broadcast publicly; or
- Where an audio-visual recording of the proceedings is kept by the tribunal.
- The Civil Practice Direction 51Y, gives a persuasive steer on acceptable virtual-hearing practice. PD51Y, para 3 provides that a virtual hearing in which a media representative is in attendance will amount to a public hearing (see https://www.judiciary.uk/wp-content/uploads/2020/03/CPR-116th-PD-Update-video-or-audio-hearings-for-coronavirus-period.pdf)
Mitigating against Chaos
Tribunals must be able to maintain control over proceedings. A protocol or practice direction may soon be released which provides a set of comprehensive directions that clearly set out the employment tribunal virtual-hearing procedure. In the interim, parties should agree a narrow set of directions which will mitigate against the disorder that can occur during a virtual hearing. The following draft directions provide a basic template:
- The virtual hearing shall take place via [THE PLATFORM] in the following manner:
- The Respondent shall arrange a [PLATFORM] meeting to coincide with the hearing date and time, and shall send details of the meeting to the Claimant and the tribunal within one week;
- The Respondent shall file a copy of the bundle, supplemental bundle and witness statement [electronically/in hard copy] the day before the hearing;
- To maintain the principle of open justice, [the tribunal shall publish the link to the meeting with the press listing/the tribunal shall record proceed];
- The order of events at the hearing shall be as follows:
- The Respondent transfers control of the meeting to the tribunal, so that the tribunal acts as the “host” for the meeting.
- The tribunal introduces the parties and checks that microphones and cameras are in working order.
- The tribunal checks that all parties have access to a physical or digital copy of the hearing bundle.
- The Claimant gives evidence on oath/by affirmation.
- The parties make submissions.
- The tribunal adjourns by muting its microphone and turning off its camera. The parties may mute their microphones and turn off their cameras but must not leave the meeting. The parties will be given a time at which they must unmute and turn on their cameras.
- The tribunal gives its judgment.
- The parties shall only speak at the e-hearing when invited by the tribunal. If a party seeks to intervene or speak without the tribunal’s invitation, that party may do so by pressing the “raise hand” button and waiting for the tribunal’s invitation to speak.
- No party shall be permitted to record the hearing.
Given the demonstrable feasibility of holding virtual-hearings and the near certainty that in-person hearings will not resume for another month, there are few (if any) reasons not to administer justice by virtual means. This is particularly the case where the disputed issues are narrow, the parties to proceedings are few, and the oral evidence is brief. The above points will, the author hopes, allay any remaining misgivings that a tribunal may have about moving to online proceedings and provide parties with a route to a swifter resolution of their dispute.