On 1 June 2020, the Presidents of the Employment Tribunals in England and Wales and in Scotland updated their list of frequently asked questions (FAQs) arising out of the COVID-19 pandemic.
The FAQs confirm that in-person hearings due to take place on or after 29 June 2020 will remain listed, subject to further direction from individual tribunals. In-person hearings commencing before 26 June 2020 are all automatically being converted to case management hearings by telephone or electronic means.
The FAQs contain a 'road map' which indicates how the tribunals intend to approach the hearing of cases between June and December. The road map is so-called because the Presidents recognise it provides "a possible route to get to a destination but cannot possibly show all the hurdles one might unexpectedly face in getting to the destination nor all the detours that might have to be taken on the journey".
What does the roadmap say?
First of all, it's worth noting that the road map is described as "aspirational", as it depends on matters outside judicial control (there may be further lockdowns), and different approaches may be taken in different regions. The Presidents wish to maximise the number of hearings that can take place using remote hearing technology, although if a party objects to its use, their objection will be considered.
Practice Directions on remote hearings are due to be issued shortly in both England and Wales and Scotland. They will deal with the conduct of remote hearings and the expectations of parties/representatives and public access to such hearings. The Practice Directions will be supplemented by guidance which will be updated as experience grows of remote hearings.
The road map is based on the premise that, from the beginning of June, there will be an increase in the availability of staff able to work in tribunal offices, as well as improved means to conduct remote video hearings on a national scale. The tribunals have licences for approximately 150 Cloud Video Platform (CVP) hearing rooms.
Different types of claim
The road map defines three types of claim:
- Short track - claims for unpaid money, such as wages, holiday pay, redundancy pay and notice pay.
- Standard track – claims for unfair dismissal.
- Open track – claims that are more complex, such as discrimination and whistleblowing.
Different phases
The remainder of the year is being split into four phases, which are anticipated to take the following form, subject to social distancing measures:
- June
Tribunals will continue to focus on remotely conducted case management hearings and judicial mediations. Many private hearings will still take place by telephone, but an increasing number will be conducted using CVP, where a judge decides that a hearing using that platform is in accordance with the overriding objective.
It is unlikely that many standard or open track cases will be heard remotely, unless they are of short duration, or are the resumption of part-heard hearings.
In-person hearings will probably not take place in June, although special arrangements may be made if there are exceptional circumstances which suggest that a hearing is absolutely necessary.
During June, judges will be trained in remote hearing technology.
- July to August
More standard track claims will be heard remotely, with those which lost their hearing date as a result of the pandemic having priority. There will be some in-person hearings, beginning with short track and preliminary hearings. Hearings involving several participants are likely to take place on a hybrid basis with some of those involved attending in person, and others attending remotely using CVP. This will continue to be a subject of discussion at case management hearings.
During July and August, and possibly running into September, non-legal members will be trained in the use of CVP. It is unlikely that many open track cases will be heard during this time.
- September to October
More open track claims will be heard remotely. Hearings may be in person, a hybrid of in-person/remote or entirely remote.
The road map stresses that due to variable resources, different regions will necessarily go at different paces.
- November to December
This will be a period of consolidation as users and staff increase their familiarity with remote hearing technology. The approach taken will be reviewed in accordance with public health guidance, recognising that restrictions may be relaxed or tightened according to circumstances.
