Preparation for CVP tribunal hearings ‘has its challenges’

Out-Law News | 26 Oct 2021 | 8:31 am |

Rebecca Sulley tells HRNews about challenges with bundle preparation and witnesses giving evidence remotely from abroad
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  • Transcript

    A couple of weeks ago we flagged the vital role that Cloud Video Platform, CVP, has played in employment tribunals during the pandemic. Judge Barry Clarke, President of Employment Tribunals in England and Wales has described it as Employment Tribunals greatest ally. He made that comment in the Senior President of Tribunals’ Annual Report 2021 which reviews the experience of all of the UK’s tribunals during the COVID-19 pandemic, and their plans for reform.

    We featured that report in our programme a couple of weeks ago: ‘CVP has been Employment Tribunals’ ‘greatest ally’’ with Rebecca Sulley explaining what it has been like defending claims in the tribunals during the pandemic. We’re returning to this to uncover a few more of the problems that CVP hearings have given rise to – practical issues that can cause delay and expense if you are caught unawares and, of course, many have been caught out because this will be their first experience of a hearing conducted in this way, remotely.

    Rebecca joined me once again by video-link from Birmingham to discuss these further points. I started by asking about the delays we are seeing currently right across the country, especially in the South:

    Becki Sulley: “Yes, so there are really long delays in London South, Watford and a number of the other tribunals, Birmingham has also experienced quite a few delays, and it’s really due to, like I've mentioned previously, the volume of claims and the lack of resource and some of the problems they've had with admin staff getting in to actually deal with the administration side of things. So we are seeing significant delays which are both frustrating to claimants, who obviously want their access to justice as soon as they can, but also to respondents and respondents’ witnesses who have a tribunal hearing hanging over their head for what can be a number of years. So we've certainly seen a lot of delays and, hopefully, that will be improved with the appointment of the new judges.”

    Joe Glavina: “CVP has been great in allowing hearings to go ahead with witnesses giving evidence remotely. But I gather you can run into problems if witnesses are doing that from overseas?  

    Becki Sulley: “Yes, so what we found during the pandemic is that a number of individuals actually travelled abroad or have gone home and are now living abroad but working for their company within the UK which, of course, has its own separate issue. In terms of how it impacts on tribunals, in certain jurisdictions it is actually not legal to give evidence from abroad without the permission of that particular court in that jurisdiction so it can create a whole host of problems and while sometimes it's not something that a judge takes issue with if the witnesses is giving evidence abroad, sometimes it is. So it's really important that if you know a witness is living abroad or has, perhaps, moved abroad and we're getting them to give evidence, that you get some legal advice on it because it might not be as straightforward as than just dialling into a CVP hearing and being able to give evidence. You might actually have to get permission from the local court to do so.”

    Joe Glavina: “We know about the massive backlog in the tribunal system with cases being listed 2 years or more in advance in some regions, and how that’s caused problems for witnesses. Tell me about that.” 

    Becki Sulley: “So what we're finding is because there are such delays in the tribunal process, and hearings have been listed so far in advance, often witnesses have left employment by the time it comes to the hearing and, of course, the further away they are in time the less likely they are to actually still be willing to give evidence on behalf of the employer. So what we're finding is we're often having to take witness statements a lot earlier than we ordinarily would, perhaps before they leave employment. If they are leaving via a settlement agreement, for example, we would include in there that they would still offer assistance with the tribunal claim and give evidence. Occasionally we're having to go and get witness orders because witnesses are leaving and then not responding to correspondence from ourselves, or just deciding they don't want to give evidence in a key tribunal case. So we are finding that the delays are impacting on witnesses and their availability to give evidence.”

    Joe Glavina: “I understand things run a little differently when it comes to preparing the bundles of documents for CVP hearings. It’s more complicated, essentially.”

    Becci Sulley: “It is. So typically, if it was an in-person hearing, we would just send the hardcopy bundles with an index at the front and that would be sufficient but with CVP hearings what judges are wanting is for the respondent to do more work in advance. So we would have to be bookmarking all of the key documents in the electronic bundle, making the bundle searchable, ensuring that the pagination matches the page numbers so that the judge can very easily type it in and search for it and that certainly adds an extra layer of time on to things. It can be quite complicated and we’re having to look at all sorts of things on electronic bundles that we wouldn't ordinarily have to, for example, redactions, ensuring that they are properly applied so that the other side can't remove it. So electronic bundling, whilst it is great in terms of it being quite easy for witnesses to navigate whilst they're at home on a CVP hearing, there is additional work that has to go into the preparation of it so it's always good to check that you are complying with the tribunal’s orders and if you are struggling with the software that you have, then seeking assistance elsewhere to try and make sure it is correct because you certainly don't want to grumpy judge at the start of the hearing because your bundle doesn't comply with the order that they sent out.”

    Joe Glavina: “Finally, Becci, can I ask you about ADR. There’s a pilot underway in the Midlands West region – tell me about that. Very different to judicial mediation?”

    Becki Sulley: “So ADR is something that the Birmingham tribunal have introduced and it is currently a trial but it looks as though it will go to other tribunals and I believe Wales and Manchester are also looking at it. So it's a type of additional dispute resolution to try and resolve a claim before it gets to tribunal. Now it is different from judicial mediation. For judicial mediation, both parts parties have to consent to it and it’s a case really of just looking at the financials and coming to a settlement as opposed to the merits of the case. How ADR is different is that it's a lot later in the process, so it's once witness statements have been exchanged but prior to the hearing, and it's a lot more the judge making a decision as to the merits of the claim, so giving his or her opinion as to who is more likely to win, potentially what monetary compensation would be awarded if the claimant did win, and it is compulsory so the parties can't opt out of it, it is something that they have to attend, and obviously that can be quite difficult if a respondent doesn't want to settle, to attend this hearing and have a judge potentially say that the claimant has a very good case and of course, as well, because it is so late in the process, they will have also incurred most of the costs involved. So whilst it is aimed at trying to avoid time in hearing it's not always something that is welcomed by the respondent. That being said, we have actually had some very positive experience in the Birmingham tribunal of making sure that claimants are more realistic in terms of what they're after, and it can, of course, lead to settlements. I should add that it's only compulsory in cases of six days or more in hearing so it's really aimed at those lengthy hearings that are taking up a lot of court time as opposed to the short hearings where it won't be required.”

    That report on how tribunals have coped, and are coping, during the pandemic is the Senior President of Tribunals’ Annual Report 2021. The section dealing with the employment tribunals, and the EAT, is at Annex C. If you would like to read that for yourself you can - we have put a link to it in the transcript of this programme.
    LINKS
    - Link to Senior President of Tribunals’ Annual Report 2021