Virtual Hearings: the moving feast

By Julie Duane, Employment Barrister

In these unprecedented times, the legal arena needs to adapt and transform its methods and practices in order to ensure that cases can continue to be heard and dealt with. Clearly, it is in the interest of justice that cases be dealt with expeditiously. One pressing example of the importance of this in practice can include the potentially ever-reducing probity, accuracy and weight of witness evidence and recollection, as time effluxes. Over the last few days, various issues have become apparent, as no organisation is operating as usual. With this in mind St Philips is updating our checklist for Solicitors to assist with the Employment Tribunal process, as follows:

Virtual Hearings

Over the last few days, various guidance has been circulated by several senior strands of the Judiciary, indicating a preference for the use of Skype for Business and Microsoft Teams for hearings. Solicitors should therefore ensure that they are not only aware of these software packages and their respective functions, but that they may also wish to consider adopting a number of temporary Microsoft email accounts so that witnesses can use these to participate in forthcoming hearings.

Preliminary Hearings

As the judiciary are largely operating a Work From Home (WFH) approach to preliminary hearings, it is essential that electronic information is provided in advance of Case Management Hearings. Solicitors should therefore ensure:

• • An electronic, paginated bundle is prepared in advance of these hearings. We are aware that due to limited scanning and printing facilities available in a WFH environment, that this may pose various logistical issues. Please therefore refer to the following St Philips podcast https://youtu.be/WmUDC3i9aTw for help and guidance on how to compile an electronic bundle;
  • The Bundle contains copies of:
    1. The Early Conciliation Certificate(s);
    2. ET1 and ET3;
    3. Any further particulars, amendments or additions to the claim and response forms, whether permitted or proposed;
    4. Previous Employment Judgments or orders;
    5. Relevant documents which are pertinent to the hearing;
    6. A completed agenda (ideally agreed by the parties), or where disputed identifying those issues clearly, including using a separate single document if necessary;
    7. A draft list of issues (ideally agreed by the parties) or where disputed identifying those issues clearly, including using a separate single document if necessary; and
    8. That the Bundle is circulated to the Tribunal and other side in a timely manner, ideally 24 hours beforehand.
  • The documents emailed to the Tribunal include in the subject line the following components: [Case No]: [Documents] Bundle- hearing on 2022 before [judge];
• The number of parties in attendance is kept to a minimum, namely those required to conduct the hearing. Where parties are attending, they are strictly reminded that the hearing itself should not be recorded; and
• Only those documents essential to the conduct of the hearing in question should be included.

These checklists are non-exhaustive, but we suggest this is a good starting point, if not a bare minimum requirement, of the steps required to prepare for a virtual hearing and will be subject to a continual review. Whilst we will work with you on a case by case basis to ensure that these steps are effective, we would invite you to support the view that facilitating virtual hearings where possible is the ideal solution, so as to avoid further time, costs and inevitable difficulties in evidence following significant time lapses between events.