Virtual tribunal hearings in the UK – is COVID-19 paving the way for a "new normal"?

Dentons

Waiting rooms, tribunal desks, paper bundles … how about your living room, the sofa and a pdf?

Traditionally, Employment Tribunal (ET) hearings have always taken place in person, the rare exception being where a witness is unable to give evidence due to location, or safety concerns. However, such cases are few and far between. This might all be about to change due to COVID-19.

What is driving the change?

As a result of the pandemic, tribunals shut their doors on 23 March 2020 and, since then, hundreds of hearings have had to be cancelled.

Presidential Guidance has since been issued, confirming that hearings will be going ahead after the end of June. However, with cases stacking up and social distancing measures likely to be in place for many months to come, attention is now turning to how the tribunals are going to provide access to justice in these new and unusual circumstances.

What is changing?

As is so often the case, technology is coming to the rescue.

The tribunal system is about to engage in possibly the most unusual use of technology it has ever seen, by undertaking virtual hearings. There are still many unanswered questions about how this will work in practice, but trials have shown that it can. In addition, with multi-day trials happening virtually in other jurisdictions, there seems to be no reason why the tribunal system in the UK cannot replicate this success.

Practical implications

With this in mind, we have set out below a few practical implications of these changes, for those who are (or expect to be) involved in tribunal litigation going forward.

  • The President of the ET has confirmed that it will now only be in "extreme" cases that there will be a postponement because a hearing cannot happen virtually. This means that parties planning to request tactical postponements on this basis will be hard pressed to succeed with their arguments.
  • Public access will be maintained, either by people dialling in to the virtual hearing or by the proceedings being streamed onto a screen in a separate room, with social distancing measures ensured. Parties must remember that a virtual hearing does not necessarily mean a private hearing.
  • Given how new this process is, parties to tribunal litigation will be expected to proactively liaise with each other and write to the tribunal with proposals as to how their case should be handled. Thought is going to have to be given as to how confidential client instructions will be provided virtually (with multiple screens, instant messenger and even email being options) and bundle preparation is going to have to move into the 21st century and become electronic.

Can the technology support this change?

With some technology providers boasting the ability to support up to 150 virtual judicial rooms at one time, and with more funding for employment judges on the horizon, we can expect hearings to be listed at greater speed than ever before. We might even start to see a combination of in-person and virtual hearings, which could be used moving forwards where physical disabilities have historically created a barrier for witnesses or parties to attend a tribunal in person.

When will virtual hearings not be appropriate?

Of course, there may always be some circumstances where it will not be appropriate to hold a virtual hearing.

One such example might be where one of the parties has a particular mental health condition which could mean that they are placed at a disadvantage by not attending in person. These cases will need to be assessed by an employment judge to determine the most appropriate method for ensuring that access to justice is met for all.

Food for thought?

Interestingly, some commentators have suggested that the additional level of collaboration which will be required between parties in order to hold a virtual hearing could result in a greater number of cases settling. Food for thought, perhaps. However, others have pointed out that for those dealing with litigants in person, virtual hearings could result in a whole new raft of issues.

So, could this be the start of one of the biggest shake-ups to the tribunal system that we have ever seen? Time will tell. However, if the technology works, we could all be litigating from the comfort of our own sofas very soon.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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