In response to the challenges posed by COVID-19, the President of the Employment Tribunals in England and Wales has issued a practice direction on the practicalities of remote hearings.
The Practice Direction came into force on 14 September 2020. Key points include:
Type of hearing:
• There are three options for a hearing: a wholly remote hearing, a partly remote hearing or an in-person hearing.
• The decision on the format of the hearing is a judicial decision. However, the parties can express their views or make an application if the hearing is in a format to which they object.
• The option decided upon will depend on the circumstances – for example, a remote hearing might be used where a tribunal venue is not open or where the claim can be heard remotely more quickly than if the parties waited for an in-person hearing.
• Employment tribunals can use a “hybrid” approach to remote hearings. For example, a hearing could be in-person but a certain witness could be allowed to join remotely due to personal circumstances or issues with social distancing in the tribunal.
Documents:
• Where at least one of the parties in a remote hearing is professionally represented, unless the tribunal orders otherwise, the witness statements and bundle must be provided in pdf form. There are certain rules on how the pdf documents must look. The tribunal might also require printed documents if a member of the tribunal lacks appropriate IT equipment.
• There are certain rules about paper copy documents to ensure safe handling. For example, paper documents should be provided to the other party or a witness in time, so that 24 hours can pass to allow for safe handling by that person.
Conduct for in-person hearings:
• Any participant should remain at home if they develop COVID-19 symptoms.
• Face coverings should be worn in the public areas of the tribunals. It is at the tribunal’s discretion to request that a witness remove a face covering when giving evidence.
• The tribunal will provide regular breaks for hand-washing.
Observation:
• For remote or partly remote hearings, any member of the press or public may observe the hearing remotely by contacting the administrative staff of the tribunal. They should remain on “mute” during the hearing. They can ask to inspect any witness statement during the hearing. This may be done by placing the witness statement on screen for long enough so that it can be read, or asking the witness to read the statement aloud. If neither is possible, the tribunal will hear evidence on the best way to ensure open justice.
• For in-person or partially remote hearings, any member of the press or public may observe the hearing by attending the tribunal in the usual way. This will be constrained by the size of the venue and the hearing room, and any local arrangements in place from time to time.
Note that separate guidance has previously been issued by the President of the Scottish Employment Tribunals.
