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Employment tribunal hearings during the COVID-19 pandemic

The employment tribunals in Scotland, England and Wales recently confirmed via a Presidential Direction that there would be no in-person hearings from Monday 23 March 2020. In addition, Employment Appeal Tribunal  (EAT) hearings are to be postponed until 15 April 2020, but a limited number of hearings will be held remotely from 16 April 2020.

Employment tribunal hearings

Conducting hearings

All hearings, listed to commence on or before Friday 26 June 2020, which parties would ordinarily have been expected to attend at a tribunal hearing centre will now be converted to case management hearings and conducted by telephone or other electronic means. They will take place on the first day of the originally allocated hearing and will be an opportunity for the parties to discuss how best to proceed under the current circumstances.

For hearings fixed for more than one day, the advice is to proceed on the basis that the remaining days have been cancelled.

In-person hearings listed to start on or after 26 June 2020 remain listed for the time being, but the position is subject to ongoing review and further direction will be issued in due course.

Orders & Directions

Orders and directions made by a Tribunal before 23 March 2020 which apply to hearings due to take place between 23 March 2020 and 26 June 2020 have been suspended. This means that you can ‘stand down’ your proposed witnesses in these cases. The intention is for the Tribunal to consider at the telephone preliminary hearing whether suspended orders and directions should be reactivated or whether new deadlines should be made.

If, however your hearing is due to start after 26 June 2020, then you must still comply with any orders and directions.

Time limits for raising a claim

The time limits for raising a claim have not been extended as a result of the Coronavirus pandemic, however a judge may still allow a claim to proceed where it is presented late depending on the circumstances. Usually, although not always, this decision will be taken at a dedicated preliminary hearing, where evidence will be heard regarding the reason for the delay, as well as arguments presented by the parties, or their representatives.

Time limits for responding to a claim

The difficulties which organisations may have in responding to employment tribunal claims during the Coronavirus pandemic were acknowledged by the Presidents of the employment tribunal, particularly if they have been ordered to close. However, the 28-day time limit for responding to a claim has not been extended. If you are unable to respond within this deadline, the normal procedure for seeking an extension of time to submit a response continues to apply.

The employment tribunal advises those employers who are unable to submit a full response on time, to consider completing a ‘holding’ response and explain that further information will be provided when possible, after the pandemic.

Further information

A full list of all the FAQs arising from the Coronavirus pandemic which were answered by the Presidents of the employment tribunal can be found here.

Note: The London Central employment tribunal will be re-opening for remote hearings next Tuesday (14 April), where telephone and video case management preliminary hearings and mediations will be conducted on listed cases. However, the Tribunal building will be closed to the public.

EAT hearings

All hearings, of all kinds, in the EAT both in London and Edinburgh, which were listed to take place up to and including 15 April 2020 have been postponed. However, directions may be issued using remote communication by the President or a Judge of the EAT in a particular case where deemed necessary for urgent reasons.

From 16 April 2020, the President of the EAT has announced that a limited number of appeals will be held remotely via telephone, Skype or other internet-based platforms.

Where the EAT consider that a remote hearing may be practicable, parties will be contacted for their view on whether the remote hearing should be held and whether they can ensure all parties and the Judge will have access to an electronic version of the hearing bundle and where appropriate the authorities bundle. If parties have not heard from the EAT about remotely conducting a forthcoming hearing by 4pm on the 7th day before their hearing is due to commence, they should contact the EAT to request an update.

In cases where the EAT consider that a remote hearing is not practicable then the hearing will be postponed to a later date and the parties will be informed.

Time Limits & Notices of Appeal

The time limits for instituting appeals and requirements for the proper and effective institution of an appeal remain unchanged and the normal EAT rules and Practice Direction should be followed. However, during this time Notices of Appeal and accompanying documents must be sent by email.

The President has highlighted that telephone enquiries will not be responded to immediately and you should expect it to take longer for communications to be answered during this time.

The measures taken as a result of the Coronavirus pandemic are subject to change depending on the latest Government guidance.

Practical guidance issued in relation to employment tribunal proceedings

Guidance has also been issued which took effect from 18 March 2020 in connection with the conduct of employment tribunal proceedings during the Coronavirus pandemic.

The guidance strongly encourages the use of electronic communication where possible and where doing so would not be contrary to the over-riding objective of the tribunal. This includes submitting applications electronically and making documents available electronically to accommodate the fact that tribunal Judges may be working remotely.

The guidance notes that Judges will bear in mind, where appropriate, whether some types of claim which would ordinarily require to be heard by a full (three person) tribunal could potentially, with both parties consent, be heard by a Judge and one member or a Judge alone and will discuss this option with both parties.

However, it is acknowledged that there are a number of constraints on the employment tribunal service at this time, including the fact that a number of tribunal offices are not equipped for video conferencing and that a number of employment tribunal hearings require to be conducted in public in terms of the Rules of procedure.

It is emphasised by the employment tribunal Presidents that parties are expected to co-operate with the guidance as part of their obligation to assist in the furthering of the overriding objective of the tribunal.

For further information or advice, please speak to your usual Brodies contact.

 

This blog was first published on 23 March 2020, and updated on 8 April 2020 and 10 April 2020. See also our latest blogs: Employment Tribunal hearings: Road map published for the months ahead and also A period of adjustment – how employment tribunals are responding to COVID-19 and how we can be best placed to help them.

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