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A period of adjustment – how employment tribunals are responding to COVID-19 and how we can be best placed to help them

The ability of employment tribunals to be light on their feet has proven especially useful in the wake of the COVID-19 outbreak. On 19 March 2020, the week before the UK introduced strict social distancing measures, the Presidents of both the England and Wales and Scottish employment tribunal services jointly issued detailed guidance to those involved in claims. With immediate effect, all full hearings up to 26 June 2020 were postponed.

The procedure rules which tribunals follow already allowed for any hearing to be conducted by electronic methods, including by telephone. Many case management hearings are routinely held this way, a welcome convention to representatives accustomed to being instructed by clients throughout the UK. This provided a way of dealing with the immediate consequences of hearing cancellations and managing the progress of at least some cases during the lockdown period.

Steps have been taken to make best use of the technology currently available, and the time given back to judges and tribunal staff. Where possible, full hearings were converted to case management calls so that any responsive measures could be taken, including where relevant the fixing of a new hearing and related directions. Existing case management hearings were able to proceed largely as normal by telephone, provided both parties were suitably equipped with both the technology and access to papers.

Some adaptations have been particularly effective in response to the limitations imposed by COVID-19. Recognising that judges would have to deal more quickly and directly with the parties, a series of individual ‘virtual hearing rooms’ with dedicated skype accounts and email addresses were set up. Claimants and respondents were directed to use a designated account overseen by a judge rather than a single generic email address operated by the clerks of a given office. Already hearings, including multi-day proceedings, have taken place.

Employment tribunals have also reacted well in providing judicial mediation. This service, with no real equivalent in the court domain, involves the parties attending the tribunal on a given day and being assigned a judge. Rather than hear the parties’ arguments and declare a winner, the judge will act as a mediator and attempt to bring the parties together in settlement of the claim, pointing out the strengths and weaknesses of each side’s case. The proceedings tend to be less formal than a full hearing and in recognition of that, and the opportunity to conclude claims efficiently, judicial mediation hearings have been taking place remotely via skype.

Perhaps the greatest challenge in adapting to the new normal has been document management, as tribunals operate a largely paper-based system. Part of the solution has been to ask more of the parties themselves. The employment tribunal procedure rules already make provision for this sort of practice, by way of the ‘overriding objective’ provisions – a set of fundamental purposes and obligations which govern all aspects of what tribunals do. The objective is ‘to deal with cases fairly and justly’, by ensuring the parties are on an equal footing, dealing with cases proportionate to their importance and complexity, avoiding unnecessary formality or undue delay and saving expense. These requirements also extend to the parties themselves, who are bound to assist the tribunal in fulfilling the overriding objective and to co-operate with the tribunal and with each other.

It is not uncommon for the parties to be given specific instructions to assist in a particular way, often by working collaboratively. In response to enforced remote working, parties have been directed to supply a judge with an agreed set of indexed relevant papers by way of a searchable pdf or similar electronic document. Recognising the likelihood that solicitors are better placed to assist with this, some directions have been given only to represented parties.

Thus, it can already be seen that employment tribunals are continuously adapting their methods of dealing with cases, and that those solicitors who have invested in file management technology and remote communication options will be able to respond best, to the benefit of the system and their clients.

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