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Employment Tribunal Hearings in the COVID-19 Outbreak

by Kenworthy's Chambers 27/03/2020

Lee Bronze shares his recent experience and practical tips for the Employment Tribunals during the COVID-19 outbreak.

This is of course a constantly evolving situation which everyone including Tribunal staff are trying to deal with.  In my experience, over the past couple of weeks there are a few issues which immediately spring to mind.

1. The issue with final hearings is that Rule 59 of the Employment Tribunal Rules of Procedure 2013 makes it plain that hearings are to be held in public except on limited grounds.  It is a strong presumption which can only be rebutted on prescribed narrow reasons.  This means that even where the technology exists to hold virtual hearings such as through Skype (which may or may not be in place) it cannot be used for a full trial unless and until there is a change in the Tribunal Rules and/or the Tribunal buildings themselves facilitate the hearing being publicly accessible.  Whether this is done through a physical screen there or it is broadcast online remains to be seen;

2. Another preliminary hearing I had on the issue of whether a claim should be accepted out of time saw the Employment Judge offer a very pragmatic and sensible way forward when not all the documents had been received by the Tribunal's administration.  The Judge was content to adjourn the hearing to give him time to read all of the papers and then reconvene the next week for oral submissions and questions on what he had read.  As I understand the situation, this represents a determination on the paper under Rule 37 of the Rules of Procedure rather than a public hearing.

In terms of practical tips it might well be worth spending time on written submissions in addition to exploring with the other side whether witness evidence can be agreed or not.  The latter may be key in getting matters progressed rather than the almost inevitable delay of potentially 12 months as I had with a 7-day trial this week. 

Otherwise it seems that Judges are keen to move things forward where possible through alternative methods:

Judicial Mediation; it is a mixed bag in terms of how successful this can be but there is no reason why this cannot be facilitated via the telephone with the Judge calling the parties in turn to offer "shuttle diplomacy" conveying offers and counteroffers;

Judicial Assessment; there seem to be a willingness at least from one region for Judges to accept smallish bundles say around 100 pages plus witness statements reading them all and then reporting back to the parties to give their preliminary views on the merits of the parties' respective cases.  Should this lead to the Parties taking stock of their position and settlement then so much the better.  However, if not, then that Judge would automatically be reclused from the case, would play no further part in proceedings and the matter would be heard by a different Judge at full trial.  It can be imagined that potentially this is of most use when one party or both parties are not professionally represented. 

In overall terms the situation is fluid but what is most certainly to be welcomed is that Judges are keen to listen to the Parties for any sort of workarounds which can be offered.  Their flexibility is to be appreciated.