November 30, 2020

Volume X, Number 335

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Online Employment Tribunal hearings – remote possibility or part of our new normal? (UK)

Remote evidence in Tribunal hearings have traditionally been limited to circumstances where an individual’s location or health makes it very difficult for them to attend the venue. Historically the ETs have not much liked it and there is a continued perception that evidence given remotely is like that given by a written statement alone – admissible, yes, but just not as persuasive as a live witness there in front of the Judge. Throw a global pandemic into the mix, however, and now remote hearings are increasingly becoming the norm rather than an exception. But how different are remote hearings to those heard in-person? What if the internet cuts off? How can witnesses be best prepared to present their evidence virtually? Read on to find out.

Preparation

It is best to treat the remote hearing as though it is an in-person hearing (for the time being the parties may get only very limited notice either way so you have to be prepared for either). This means all usual etiquette found in an in-person hearing should be applied during a remote hearing. Parties should ensure they are properly dressed (no embarrassing half-dressed attempts – the shirt, tie and Bermuda shorts combo is only fine until you have to answer the door), in a quiet brightly lit room with no distracting backgrounds. You should aim to have no children or dogs in the house, though if you are doing it from home it may be helpful to have someone else in the house to deal with phone calls, deliveries, etc. Make sure you have hard copies of your witness statement and the evidence bundle to hand. Witnesses should also ensure that they are in separate rooms when giving their evidence virtually, bearing in mind that the Judge is likely to seek express confirmation of this in order to minimise the scope for the witness to be guided in his answers from off-camera. You will still be forbidden from talking to anyone about your evidence during any break in it. And most importantly, a laptop, computer, tablet or phone with video functionality is required to attend the remote hearing, so a good internet connection is vital.

Video platform

HM Courts & Tribunals Service (HMCTS) and Ministry of Justice (MOJ) have developed their own in-house Cloud Video Platform (CVP) which is used by Employment Tribunals to conduct remote hearings. Luckily there is no need to download a separate app to access this. The ET will simply send the relevant CVP link to all parties along with an access code to log on to the system. Although CVP is the main platform used, Judges are free to use other platforms such as Microsoft Teams and Skype for Business. Which platform is used is all dependant on the availability of administrative and technical support from judicial staff – none seem materially more or less reliable than any of the others.

It is advised that parties log on to the CVP system (or other chosen platform) 15 minutes before the start of the hearing. This will allow testing of video and microphone. IT staff are on hand to provide IT support via a telephone number if parties experience issues. The CVP comes with some perky functions such as instant messaging and a document sharing function.  This is useful especially if a party or their representative needs to report any technical issues or to share any documents (with the Judge’s permission) to the Judge that are not, for example, in the bundle.

Sounds pretty straight forward, right? Wrong. The CVP system has not come without teething issues. Common issues include no sound, crashing/freezing videos or losing a party or their representative midway through their submissions. The good news is that unless and until it becomes clear that it is your fault, Judges are (of necessity) generally sympathetic to any teething issues and will allow for briefs halts to the proceedings to rectify such issues. The bad news is of course that ongoing technical difficulties may prolong the hearing for longer than is actually necessary or, if irremediable, may force an adjournment altogether. Current delays in the ET system are such that there may be many months before the date could be re-listed – it has been reported that there was a backlog approaching 40,000 cases as at September this year.

Practical steps

There are some practical steps parties and representatives can take to avoid such issues occurring. The use of Microsoft Teams in the background can prevent the CVP system functioning properly, so it is best to close the application and any other running applications if attending a remote hearing via CVP. A good internet connection speed can also reduce the chance of being cut off midway through any submissions.

The CVP is a useful alternative to an in-person hearing and the HMCTS and MOJ should be applauded for creating at such speed an alternative means for undertaking remote hearings. Although the occasional technical issues make it harder to observe those all-important facial expressions of each witness and to the extent that it is  an attraction, you do lose the immediacy and drama that comes with sitting in a Tribunal, the uncertainties of the ongoing pandemic mean that remote hearings are here to stay for quite a while. Even before the pandemic there was discussion of a “digital by default” ethos for the ET system, though beyond the increasing use of the telephone for case management hearings, little outward progress had been made. Perhaps the pandemic will provide the impetus required to get that back on course.

For further information you can download a useful FAQ guide on how to prepare for remote hearings here.

This article was written by Phillipine Wiegand-Forson.

© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 300
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