In the space of a little over a month there has been nothing less than a revolution in the employment tribunal. For years we have been discussing the possibility of holding more hearings remotely. They save time and cost, arguably provide more, not less, access to justice, and at a stroke may solve some of the issues facing those that want to rationalise the Court Estate (i.e. sell off court and tribunal buildings to finance the Court/Tribunal Reform Programme).
And then came Covid-19. In the face of the pandemic, the presidents of the employment tribunals in England & Wales and in Scotland quickly issued guidance with effect from 18 March 2020 which provided “strong encouragement to tribunals and parties to use electronic communications methods [...] and video conferencing technology where available, to conduct hearings of all kinds, where doing so is compatible with the overriding objective and the requirements of the Rules”.
Since then, lawyers – many for the first time – have begun to experience what it is like to conduct a remote hearing. I was one of the lucky ones and had early experience soon after the presidential guidance was issued. It is fair to say everyone was a little nervous at the start, but those nerves soon calmed down. At the end I was surprised at how quickly you settle into the new environment after years of prevarication and trepidation.
It is unrealistic to think at the end of this crisis we are going to go back to where we were. As a result of coronavirus, we have seen other courts try remote hearings too – for example, a complicated civil dispute with hundreds of millions of pounds at stake, and a fully contested probate action. So in the future it is going to be very difficult to suggest employment cases cannot be heard in the same way.
- What does that mean for employers in terms of their cases before the employment tribunals in the coming months and years ahead?
- They are going to have to get comfortable with the new environment and it will not be what they are used to:
- You may be asked to deliver evidence remotely. It is undoubtedly a different skill to presenting evidence from a chair in a tribunal room.
- At the start you need to get comfortable with the software on entry to the ‘court’. At present we are using many of the platforms employers will be familiar with – Skype for Business, Zoom etc. They are all manageable in this context, but we may soon be encouraged to use a single approved platform which will have to be mastered.
- We will need to think carefully about what we wear, as the protocol is being developed here. How we manage the documents in the case will need to be considered – will it be by reference to a hard copy of the documents (and the authorities) or will these be referenced by way of electronic bundles only, and if so, how?
- If you want to swear you will need to ensure ready access to the appropriate religious book (something that caught us out in ‘my’ case).
- You will need to think about ensuring the strength of your internet connection (maybe by warding your children off the net for an appropriate time).
- The backdrop can be important too. Has this been arranged?
- Speaking slowly into the camera is vital otherwise sound levels will vary as you turn from side to side and take care not to fidget in the slightest, as this behaviour is enormously magnified on camera.
- Do you wear glasses? If you do, do they go dark if you stare into the camera, making them appear like sunglasses? That may be a good look for a film star but perhaps not for a witness before the court.
- Where is the light coming from when you give your evidence? If you film with a sun-soaked garden behind you, your face may be difficult for the judge to see.
These are just some of the new facts of life for experienced HR managers and company directors who have never before given evidence in this way. But the central message must be – don’t be like the actors in the silent movies and find once sound comes along you are left on the wrong side of history. Embrace the new environment with gusto and you will be ahead of the game.
Richard Fox is a partner in the employment team at Kingsley Napley LLP