Employment tribunals have always had the power to hear evidence remotely, including by video link. Rule 46 of the Rules of Procedure provides that: “A hearing may be conducted, in whole or in part, by use of electronic communication (including by telephone).”
However, this was a rarely used case management power – probably because where video evidence was rare, the perception of representatives was that their witness’ evidence would not be well received unless they attended in person. It was not unheard of for witnesses to fly in from abroad to give evidence, usually at the expense of the party calling them.
On 19 March 2020, all in-person hearings were effectively cancelled until 26 June 2020. When hearings recommenced, they were mostly conducted remotely, via HMCTS’s own Cloud Video Platform (CVP).
On 31 March 2021, the Presidents of the Tribunals in England and Wales and in Scotland published a road map for employment tribunal proceedings, providing that the default position will be remote hearings in most types of claim, with the exception of discrimination and whistleblowing claims.
The upshot is that remote hearings are here to stay, at least in the short term. In the long term, I would be surprised if they didn’t remain an important part of justice in the employment tribunal.
A remote hearing can be fully remote or a hybrid hearing, where some participants attend in-person but others (perhaps because they are clinically vulnerable) participate by video.
There are some downsides to this. Firstly, for a claimant bringing a claim such as harassment or a manager wrongly accused of discrimination, bringing the tribunal into their home is likely to heighten anxiety.
Secondly, management of what is a formal legal process can be more difficult. I have experienced witnesses simply getting up and leaving the room part way through their evidence and comments from an off-screen (and hitherto unannounced) observer interrupting a witness’ evidence, much to the chagrin of the judge.
However, in my opinion, the downsides are outweighed by the upsides. Firstly, most people (although not everyone) are now used to taking part in video meetings at work. Secondly, time is used more efficiently on the day of the hearing; during breaks people can check their emails and deal with other matters and there is no travelling time.
Most importantly, however, the quality of the justice is not diminished; I have been impressed by the way that hearings have been conducted and do not believe that the hearing medium has affected the outcome in any of the cases I have been involved in. Where clients of mine have experienced both in-person and remote hearings, generally speaking, they prefer the latter.
That said, there will be cases where an in-person hearing is more desirable; for example, a constructive unfair dismissal claim where allegations of bullying are made and the case turns purely on credibility. The procedure allows for the default position to be overturned in such a case.
Here are some practical steps to bear in mind if you are involved in a remote hearing:
Read the tribunal guidance on remote hearings carefully to minimise the risk of technical issues.
- Expect technical issues and don’t be thrown by them. It’s inevitable that someone’s internet connection will fail or they will have forgotten to put their camera on. It won’t reflect badly on anyone and the tribunal will just get on with things once the situation is rectified.
- Set up a line of communication such as a whatsapp group – but make sure witnesses are excluded from group communications while giving their evidence, as like all proceedings, witnesses are forbidden from discussing the case while giving their evidence.
- Make sure witnesses are able to give video evidence and view documents at the same time; they may need a separate device for documents or hard copies.
- Remember it is a criminal offence to record or broadcast a hearing without the permission of the tribunal. Don’t be that person.
David Sillitoe is a partner at Robinson Ralph LLP