The pandemic ushered in a seismic shift to employment tribunal proceedings, introducing remote hearings over a very short timeframe and altering the way in which tribunals work for good.
While there are now attempts to shift away from all hearings being remote, the impetus for change continues with the development of a new system to create a digital file which supports the conduct of a case from the point at which it is issued until its conclusion.
Meanwhile there's also new Presidential Guidance on taking evidence from those who are abroad, as well as an ability to apply for transcripts of recorded tribunal proceedings.
New tribunal "road map"
A new "road map" for employment tribunal proceedings in 2022/23 has recently been published by the Presidents of the Employment Tribunals in England and Wales and in Scotland. It represents an attempt to move towards greater use of in-person hearings, and to reduce the reliance on video, especially for final hearing of standard track and open track claims. There is an acknowledgment that there won't be a return to the pre-2020 "normal" in employment tribunals, as "normal" ways of working will be changed permanently by HM Courts & Tribunals Service (HMCTS) reform, regardless of the impact of the pandemic.
The road map notes that the majority of hearings across Great Britain are still taking place on a fully remote basis. In some parts of the country this amounts to over 90% of hearings. The aim is to bring this percentage down, but there is also an acknowledgement that, in some cases, a video hearing reflects the preferences of the parties and their representatives. It can also be less costly and less disruptive to the lives of those participating.
From 1 April 2022 preliminary hearings listed for case management purposes, or to consider an application for strike out or for a deposit order, will continue to default to video or telephone, and this is likely to become the permanent position. This will also be the case for preliminary hearings held to determine a straightforward preliminary issue (for instance time limits in an unfair dismissal case), but for more complex issues requiring detailed evidence (for instance whether TUPE applies, whether an individual is disabled, or determining employment status) greater use of in-person hearings will be made. The default to video position will also apply to applications for interim relief and judicial mediation (although for the latter telephone mediation will continue in some parts of England).
The final hearings of short track claims (for example claims for unpaid wages, notice, holiday pay and redundancy pay) will continue to default to video, but there will be a greater use of in-person hearings where the case involves significant disputed evidence. In the case of standard track claims (unfair dismissal) the situation will vary. The Presidents have indicated that they would like them to return in greater numbers to in-person hearings, especially where the case involves significant disputed evidence. They acknowledge though that this will take time because post-Covid recovery will not be uniform. This means that in parts of the country where the backlog is greatest (in particular London and the South East) final hearings of standard track claims will continue to default to video to enable maximum use of judges in the" virtual region". The "virtual region" was set up last year in England and Wales and comprises around 100 fee-paid employment judges. It allows judges, members and staff who are geographically dispersed to come together for cases generated by any region.
The Presidents have stated their wish for final hearings of open track claims (discrimination and whistleblowing) to default to in-person hearings. This will be the default position in Scotland, but is not achievable in all parts of England and Wales so there will be a greater reliance on video and hybrid formats.
In every case, it will be open to an employment judge to decide that the default position should not apply, and it will also remain open to the parties to apply to the tribunal for a different approach. This may result in a change of format or a hybrid approach in which one or more of the participants joins remotely.
Employment tribunal reform
HMCTS has published an FAQ document dealing with employment tribunal reform.
It explains that as part of the programme to reform the tribunal system, HMCTS is designing a digital system which supports efficient and effective working so the service can be conducted digitally from start to finish. The reform process is being designed to remove paper from the employment tribunals, through the creation of an effective digital file. The digital file will provide an evidence management and case presentation capability that is designed around the needs of those who use it.
What is described as the "new online journey" currently involves a private beta release which will test the system before it is rolled out for wider use. The new digital system will give tribunals users access to an online portal, 'MyHMCTS'. MyHMCTS is an online case management tool for solicitors and other professionals (for example, claims management companies and HR consultancies). It will allow professional users to submit and manage online claims and responses. For the first private beta release the MyHMCTS service will only be available to legal representatives for the respondent, but during the course of the next year this will also be made available to legal representatives for the claimant.
Evidence from abroad
What happens when a witness is located abroad? Some Presidential Guidance has recently been issued on taking oral evidence by video or telephone in this scenario. It takes account of the recent Upper Tribunal decision in Agbabiaka (Evidence from Abroad, Nare Guidance) where it was held that enquiries must be made of the foreign state where the person is located to ascertain whether it objects to oral evidence being given to a UK tribunal from within its territory. The decision is not binding on the employment tribunals, but the Presidents have taken the view that it is appropriate to follow the same approach.
Employment tribunals have allowed people located abroad to give oral evidence by video or telephone for many years now, and, until recently, it was not generally considered necessary to obtain the permission of the foreign state in question. However, in Agbabiaka it was held that there is an understanding that one nation state should not seek to exercise the powers of its courts within the territory of another without having the permission of that other state to do so, and that the issue of whether it is lawful for a UK tribunal to take evidence given from another country is a question of law for that country. It also upheld that Foreign, Commonwealth and Development Office's (FCDO) stance that only the giving of oral evidence from a nation state requires the permission of that state, and that permission is not required for written evidence. The FCDO has since established the "Taking of Evidence Unit" (ToE Unit).
The Guidance states that a party who wishes to rely on evidence from abroad must notify the relevant employment tribunal office of the case number, confirmation that the party wishes to rely on evidence from a person located abroad, the dates of any listed hearing in respect of which the request is being made, and the state from whose territory that person would, if permitted, be giving oral evidence. HMCTS will then contact the ToE Unit and the ToE Unit will either confirm that the foreign state has no objections or will make enquiries of that state. As it can take months for the ToE Unit to receive a response to an enquiry via an Embassy or High Commission the Presidential Guidance notes that the tribunal must be notified as soon as it is apparent that oral evidence from a person abroad may be needed.
Evidence from abroad
What happens when a witness is located abroad? Some Presidential Guidance has recently been issued on taking oral evidence by video or telephone in this scenario. It takes account of the recent Upper Tribunal decision in Agbabiaka (Evidence from Abroad, Nare Guidance) where it was held that enquiries must be made of the foreign state where the person is located to ascertain whether it objects to oral evidence being given to a UK tribunal from within its territory. The decision is not binding on the employment tribunals, but the Presidents have taken the view that it is appropriate to follow the same approach.
Employment tribunals have allowed people located abroad to give oral evidence by video or telephone for many years now, and, until recently, it was not generally considered necessary to obtain the permission of the foreign state in question. However, in Agbabiaka it was held that there is an understanding that one nation state should not seek to exercise the powers of its courts within the territory of another without having the permission of that other state to do so, and that the issue of whether it is lawful for a UK tribunal to take evidence given from another country is a question of law for that country. It also upheld that Foreign, Commonwealth and Development Office's (FCDO) stance that only the giving of oral evidence from a nation state requires the permission of that state, and that permission is not required for written evidence. The FCDO has since established the "Taking of Evidence Unit" (ToE Unit).
The Guidance states that a party who wishes to rely on evidence from abroad must notify the relevant employment tribunal office of the case number, confirmation that the party wishes to rely on evidence from a person located abroad, the dates of any listed hearing in respect of which the request is being made, and the state from whose territory that person would, if permitted, be giving oral evidence. HMCTS will then contact the ToE Unit and the ToE Unit will either confirm that the foreign state has no objections or will make enquiries of that state. As it can take months for the ToE Unit to receive a response to an enquiry via an Embassy or High Commission the Presidential Guidance notes that the tribunal must be notified as soon as it is apparent that oral evidence from a person abroad may be needed.
Applying for transcripts of a recorded tribunal hearing
The Employment Appeal Tribunal (EAT) has held in Kumar v MES Environmental Ltd that where HMCTS has made an audio recording of an employment tribunal hearing, a party can apply for a transcript, provided they pay the applicable fee and comply with the associated protocols.
The claimant brought claims of direct race discrimination and victimisation, both of which were dismissed by the tribunal. The claimant later applied to the tribunal for a transcript of the hearing, using form EX107. This is a form by which a person can apply for a transcript of an audio recording of a High Court or County Court hearing under Rule 39.9 of the Civil Procedure Rules; these do not apply to employment tribunal proceedings and the ET Rules do not include any provision for the recording of hearings or any right to apply for a transcript. The employment judge refused, holding that the ET rules made no provision for such an application. The claimant appealed to the EAT.
The EAT held that it is unsurprising that, as employment tribunal proceedings have not historically been recorded, the ET Rules (which are now nearly a decade old) do not mention transcripts. Silence didn't mean that Parliament had decided that a party cannot request a transcript when a recording has been made, although the EAT conceded that it would be better if the position were expressly addressed in the ET Rules. The EAT concluded that, where proceedings have been recorded by HMCTS, a party should, in principle, be able to apply for a transcript of the recording, subject to paying and complying with the appropriate protocols.
The decision in Kumar confirms that where an employment tribunal hearing has been recorded a party can apply for an official transcript of the proceedings using form EX107 and ensuring that the appropriate fee is paid. The EAT made it clear that, where a tribunal gives oral reasons for its decision at a hearing, there is no right to a transcript of those oral reasons. The rationale behind this is that where an oral decision is given which is then followed by written reasons, the written reasons are not required to be a pure verbatim transcript of the oral reasons.
Presidential guidance on the matter is expected to be published shortly.
