Employment tribunal procedure – virtual hearings

Out-Law News | 05 Nov 2020 | 1:53 pm |

Sarah Ashberry tells HRNews about the challenges facing witnesses giving evidence remotely.

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    Tribunal procedure – remote hearings

    Last month we reported on the latest quarterly figures from the Ministry of Justice showing a sharp rise in the number of claims being brought before the employment tribunals – it shows an 18% increase in single claims during lockdown. Personnel Today has picked up on this with lawyers in broad agreement that the reason is down to the impact of the pandemic with many employers forced to cut costs, and cut corners. So for example, taking short-cuts with redundancy procedures, especially consultation, and rushed choices about who to keep and who to let go, giving rise to unfair dismissal and discrimination claims. The tribunal system was already creaking before the pandemic but that rise in claims has put the tribunal system close to breaking point - the backlog is said to be 26% higher than at the beginning of March and has increased every week since the lockdown began. People Management reports on the government’s efforts to help fix the problem by making changes to the tribunal rules which were brought in last month. New regulations were introduced on 8 October affecting the way that tribunals operate, allowing short-track cases involving simple money-based claims to be heard more quickly and, in all case, for parties to be encouraged to reach a settlement – to that end the standard early conciliation period has been extended from one calendar month to six weeks, a change that will come into force in a few weeks' time on 1 December. Also, to help get through the enormous backlog of cases, and recognising that holding virtual hearings across the UK is helping, the latest changes remove some of the practical difficulties involved in running remote, or partly remote, hearings bearing in mind that the existing rules assume the parties and witnesses will be present in the same room in the same building. So the net effect of the changes is we will be seeing more cases being heard either fully remotely, or partly remotely, so the continuation of a definite trend we have seen with our own caseload during this pandemic. So what has that been like for the witnesses at the sharp end who are faced with a remote hearing and will not have experienced anything like this before? To get a view on that I spoke to the Head of our Advocacy Unit, Sarah Ashberry who joined me by video-link: 

    Sarah Ashberry: “Well, from my perspective, it has gone very well, so far. Obviously, witnesses are having a completely different experience. We're used to being able to physically get together with witnesses at the tribunal on the day to make sure they're supported and they can also support each other, effectively, in that environment. Now, of course, everyone's separate so we're having to, instead make sure they're supported by, for example, having a Teams call first thing on the day with a with the barrister, if necessary and then also having a wash-up call at the end of the day so that the witnesses can come together as a group, with representatives and sort of review how the day has gone. So that's not as good, obviously, as us all being together but we're trying to simulate the experience and make sure that the witnesses that are involved are not isolated, and hopefully not too worried. But from what I've seen witnesses have been able to give evidence effectively, the technology does in the main work. A hearing I was watching last week, I was really impressed with how the judge was managing the hearing, she was really clear, she had slowed things down a bit. So possibly things are going to take a bit longer and seem perhaps a little bit more laborious but that's the price for making sure that everybody is hearing and understanding and being understood. So I thought hearing last week went very well. It might actually be a bonus for some witnesses not to have to travel. So in the old way, it wasn't always terribly convenient for witnesses to have to travel, sometimes significant distances, to get to a tribunal on the morning and give evidence, at least they don't have to do that now. They can give evidence, in theory, from where they are which may suit them much better. If they're worried about their internet connection not being robust enough, because it does have to be very good, it’s possible perhaps for a witness to make an arrangement to come to their representative’s office and give evidence, if that suits them better.”

    Joe question: “On that point, Sarah, I was speaking earlier to an employment judge about this and he told me that, given the choice,he prefers for the witness to be with their representative when they give evidence because he’s then not worried about outside interference. His concern is that if a witness is on their own at home they don’t necessarily follow the rules as they would if they were present in person in front of him at tribunal.

    Sarah Ashberry: “This is this is significant problem and we have to deal with it proactively by really coaching the witnesses in advance about what the rules are, making really clear that they understand them. It's always been the case that while you're on oath the only person you should communicate with is the judge and that means that if there's a gap in your evidence, and sometimes it's overnight, or sometimes it's just over the lunch break, you're not allowed to talk to anyone about your evidence during that gap. We used to be able to police that quite effectively because the judge will typically give that warning to the witness directly at the end of their session but now, with witnesses not being with us, we have to be really careful that they're sort of insulated from the other parties in the case. So they are not involved, for example, in any WhatsApp group chat - that would be really wrong. They must not see messages on the WhatsApp group chats from the other participants in the case. So you have to remember to instruct people that they must not do that, or actually physically remove them from the WhatsApp group chat or whatever channel it is that other people are using.”

    I mentioned having spoken to an employment judge. That was Jacques Algazy QC. He is Head of Cloisters Chambers and as well as being an advocate in the tribunals he regularly sits as an employment judge. In a phone call I had with Jacques he told me how the judicial system has adapted to the challenges of Covid-19 with the result we are now seeing significantly more fully remote hearings and how some of the witnesses he sees do struggle when giving their evidence:

    Jacques Algazy: “It's actually a problem that has arisen from ordinary practice long before pandemic. The very dynamics of the tribunal or court room are artificial. Most tribunal rooms are set up with the witness either to the left or the right of the advocates’ bench with the bench to the rear of the witness and the natural tendency, when being asked questions from the advocates’ bench, is to answer the person who is asking the questions. I always tell, and I know it's a regular feature of witness familiarisation, that you remind the witness in the ordinary courtroom to turn and address the judge, or the judges, and if it's a panel, not the focus simply on the judge because all three panel members are just as important, and to vary your gaze to demonstrate your engagement with the process and willingness to give answers as best you can.Many, many witnesses forget and fail to do that and end up in the trap of entering into a kind of dialogue with the barrister or representative, which is unhelpful. That's what happens in the ordinary way. The problem is magnified, and added to, in remote hearings because you don't even have that reference point, if you're told or have been told about that process of giving evidence before you give evidence, because you're just staring at a screen. As I say, the natural inclination, if you're staring at a number of different screens, is to address the person that you want to be speaking to, oblivious of the fact that, of course, that has got nothing to do with what the camera is picking up. A little tip that I like to use myself, is to put a little post-it or marker near the camera screen so that I can remind myself that I need to be addressing the camera.”

    Jacques’ chambers, Cloisters, have put together a very good webinar on remote hearings which gives a lot of tips and useful information for both advocates and witnesses. It features four of their employment barristers. That is available now for viewing from the Cloisters website.