The future of employment tribunals in the post-Covid-19 world

In the last few weeks there has been a major shift in the way employment tribunals have been managed.

For years, lawyers and judges alike have been discussing the possibility of holding more hearings remotely. Remote hearings save time and cost, arguably provide more, not less, access to justice, and may solve many of the issues facing the overburdened tribunal system.

Then in March, as the extent of the Covid-19 pandemic became clear and the lockdown was put in place by the government, the presidents of the employment tribunals in England and Wales and in Scotland responded swiftly by issuing new guidance which gave “strong encouragement to tribunals and parties to use electronic communications methods…….and video conferencing technology where available, to conduct hearings of all kinds, where doing so is compatible with the overriding objective and the requirements of the Rules”.

Since then, many lawyers have begun to experience what it is like to conduct a remote hearing.  Directions hearings have, of course, been conducted by telephone for several years now, but it was thought by many that the difficulties of giving live evidence remotely might be rather difficult to overcome. Yet the anecdotal evidence of full hearings being conducted remotely since the lockdown would suggest that judges, lawyers and the parties themselves are quickly settling down into what may soon become the new norm.

It is unrealistic to think that, at the end of this crisis, we are going to go back to where we were. As a result of coronavirus, we have seen other courts try remote hearings too – for example, a complicated civil dispute with hundreds of millions of pounds at stake, and a fully contested probate action. So, in the future, it is going to be very difficult to suggest employment cases cannot be heard in the same way.

What does that mean for employers in terms of their cases due before the employment tribunals in the coming months and years ahead?

Employers are going to have to get comfortable with the new environment and it will be a culture shock for some (though for other, more tech-savvy employers, it may actually be a better experience). It means that:

• You may be asked to give evidence remotely. Although it may have similarities with giving evidence in a tribunal room, it is a different skill, and clarity of speech will be even more important, especially in the context of potential delays inherent in computer connections.
• At the start, you need to get comfortable with the software on entry to the ‘court’. At present we are using many of the platforms employers will be familiar with – Skype for Business, Zoom etc. They are all manageable, but we may soon be encouraged to use a single approved platform which will have to be mastered.
• You will need to think about ensuring the strength of your internet connection (if you are working from home, perhaps by banning your children from using your wifi for a sufficient period – good luck with that one!).
• On the same theme, you will need to ensure that there is no risk of inappropriate background noise which may interfere with proceedings, make it difficult to be heard or cause offence to anyone (again, working from home with children in the house may present a challenge!)
• Parties and lawyers alike will need to think carefully about what they wear.  A smart and respectful appearance is always sensible. Pyjamas are definitely not advisable!
• How will we be required to manage the documents in the case? Will it be by reference to a hard copy of the documents or will these be referenced by way of electronic bundles only?
• If you want to swear an oath, you will need to ensure ready access to the appropriate religious book.
• Think about what visual backdrop will be appropriate – almost certainly something neutral, non-distracting and inoffensive will be necessary.
• Speaking clearly while looking into the camera is key, otherwise sound levels will vary as you turn from side to side. Also take care not to fidget, as this behaviour can be magnified on camera.
• Think about lighting and where the light is coming from when you give your evidence. Being outside is almost certainly going to interfere with the quality of the video and may also give the impression that you take the whole process far too casually.
• Any of the above physical ‘impressions’ you create while giving evidence, whether poor lighting, poor sound, inappropriate backdrop, inappropriate dress, mannerisms or any combination of these, are likely, at best, to irritate the judge and, at worst, give the impression that you are not a sincere or credible witness and risk an adverse impact on the outcome of your case.

Many of these issues may seem obvious or simply common sense, but it will be critical for HR managers and company officers alike to give serious consideration to them in good time before hearings, and ensure not only that witnesses are properly prepared for the experience, but that the physical, controllable aspects of your remote environment have been properly prepared.

As with any new experience in life, the key message for success must be preparation. And, as many of us are finding out from other aspects of living life in the new world that has been thrust upon us, there may be many aspects of the ‘new norm’ that we prefer to the old.