Employment tribunals in Covid times ‘a different challenge’

Out-Law News | 26 Jan 2021 | 10:49 am |

Sue Gilchrist tells HRNews watching a mock virtual tribunal is helpful preparation

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  • Transcript

    Have you been involved in a tribunal hearing recently? We ask the question because if the answer is no, not since last summer, then your next experience of a tribunal hearing will probably be very different to what you're used to. That's because there's a good chance it will be conducted online, remotely. So you won't be turning up at a building, you'll be sitting in front of a monitor or laptop instead.  In recent months, because of Covid, that has been the norm. The Tribunal Service is using a platform called CVP, Cloud Video Platform, and the parties and judge join through that and, as you'd expect, they have produced lots of guidance to help explain how the technology works and how to participate. That is actually very important to understand, especially making sure that private comments are not accidentally broadcast to everyone else. Famously, that did happen to a judge in a family case back in July in a hearing where Zoom was being used, before CVP took off. As the Law Society Gazette reported at the time, the judge had to be replaced after she made private comments which were overheard. What happened is the mother was giving evidence remotely and someone took the judge’s closed laptop through to her room but the remote link to the court room remained open, but the judge didn't realise. She then had a private conversation with her clerk which was overheard by everyone else. The judge had told her clerk she thought the mother was pretending to have a cough and was trying ‘every trick in the book’ to avoid answering difficult questions. So the lesson there is be careful and understand how the technology works. To that end, for employment cases, to help clients, back in December we ran mock virtual tribunal which you can watch because we recorded the whole thing and have posted it up on our website. We used Zoom for our purposes, but it works in a similar way to the cloud platform so what you see is pretty close to what happens, albeit obviously the participants were acting the various roles as it was a mock tribunal for training purposes. We promised to report back on how it went and what delegates took away from the event. To find out I contacted Sue Gilchrist who helped coordinate the event. She joined me by video-link from Glasgow. I asked if it had gone well."

    Sue Gilchrist: "Oh, absolutely Joe, it was a really great event, very enjoyable as well as letting clients get an insight into what a virtual tribunal looks like because so many of our hearings are now online, and our witnesses are attending online, etcetera and to be able to have a view of what that might look and feel like in advance is really beneficial. I think they took a lot out of it, the feedback was very positive. I guess a couple of main learnings, if you like, for them. Firstly it is still a tribunal albeit that it is online and in a format that doesn't look all that dissimilar to Zoom or, or Teams, the things that we're so used to using nowadays. So although it's on a format online, it's important to remember that this is the actual tribunal hearing and therefore the rules around the quality of evidence etcetera still apply. So one of the witnesses, in fact the claimant in our mock tribunal, tried to bring in evidence from his diary, and he waved it in front of the camera on the day. Obviously, this was all scripted so it wasn't unexpected, but in a real event that evidence would have had to be disclosed to the tribunal and to the other side in advance, and it wasn't, so we had a bit of a debate, should it be allowed in? No, it wasn't allowed. So he was excluded from bringing potentially relevant evidence and in a real event, if it was a solicitor involved as well, they would have probably got a ticking off from the tribunal that that that sort of evidence should have been disclosed. So it was a reminder, I think, that the usual rules still apply, you know, we are trying to look at the evidence and come to a decision on the case and that's important. So it's not informal in the way that a Friday night Zoom call is. The other thing, I think important to, to understand is getting yourself familiar with the tech because it may well be on a platform that you haven't used before and we have the facility to run test calls with our witnesses and those who are attending the hearing and we would very much encourage folks to attend those because they do give you a feeling for what it's going to be like on the day. That feeling is important but also, really importantly, it just allows you to test your technology works. Is your broadband speed up to scratch? Have you got a plain-ish background that will be suitable for tribunal? Does your microphone work? Can you hear people? Do you need a separate screen to share or view documents? Again, these are all things that you won't have done before, we don't expect you to have done them before, but that's why we are there to help witnesses by arranging these test calls and talking them through what the virtual hearing will look like and to give them a great perspective in advance so they've not got the additional hurdle, if you like, of giving evidence in a format which they're unfamiliar with, as well as the inevitably quite stressful experience of giving evidence itself."

    Joe Glavina: "You are based in Glasgow, Sue. Have most of the tribunals in Scotland been conducted virtually as far as you can tell?" 

    Sue Gilchrist: "Yes, most of them have been happening virtually and very successfully. The tribunal put in place a system which there were a few teething problems with but actually has worked very well and as intended. That's true of Scotland and the rest of the UK. So most of the hearings that we're seeing are being done virtually. Some have been hybrid in form where one or more witnesses might attend the actual healing venue but certainly most of them have gone virtual. All of the procedural hearings that we're seeing really are being done virtually and that just minimises the contact and travel etcetera for lawyers and for witnesses. So it has been very successful I think and probably will continue post COVID. I think we will see a reduction in the number of hearings in person required, even when all of this is over."

    That mock virtual employment tribunal was recorded and is now available to watch in full - you simply login to view. It's just over 2 hours long if you watch it right through. You can find a link to it in the transcript of this programme. 


    - Link to Virtual Mock Employment Tribunal