Posted on: Mar 19,2020
The Presidents of the Employment Tribunals (England & Wales, and Scotland) have issued Presidential Guidance on the Conduct of Employment Tribunals during the COVID-19 Pandemic
* Starting on Monday 23rd March 20202, there will be no in-person ET Hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre).
*All in-person hearings will be converted to a case management hearing by telephone or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing.
*The electronic case management hearing will be used to discuss how best to proceed in the light of the Presidential Guidance, unless in the individual case the President, a Regional Employment Judge or the Vice-President directs otherwise.
*If a hearing is set for more than one day, then parties should proceed on the basis that the remainder of the days fixed have been cancelled.
*This direction also applies to any hearing that is already in progress on Monday 23 March 2020 and, if not already addressed before then, the parties may assume that the hearing on that day is converted to a case management hearing of the kind referred to above.
All stakeholders should approach these unprecedented circumstances in a spirit of mutual cooperation to maximise the number of hearings that are able to take place through the creative use of all means available, which are compatible with the Rules and the overriding objective.
Hearings of any kind can be conducted in whole or in part, by use of electronic communication (including by telephone. Electronic communication can include use of video conferencing and skype. If a hearing takes place by electronic communication this will reduce the risk to parties and representatives, and related worry and stress, which may be occasioned by travelling to hearing centres and interacting physically with a range of individuals. It may also mean that a hearing can take place expeditiously which might otherwise be delayed due to Covid-19 related difficulties (such as travel disruption or inability to appear in person due to self-isolation).
Where parties consider that an in-person hearing of any kind, which is already fixed, could be converted to a telephone hearing or hearing by other electronic means they should notify the tribunal office as soon as that becomes clear so that the request can be placed before a judge.
Written submissions can be used, with each party having the opportunity to comment on the submissions made by the other side. If a party considers that this would be contrary to the overriding objective then they should make their position clear in writing as soon as it becomes evident that arrangements are going to have to be made for submissions to be delivered.
On occasion remedy hearings are fixed in cases where no ET3 has been submitted in a case and a liability only judgment has been issued under rule 21. When this happens it is often because the claimant is unrepresented and the Employment Judge forms the view that it will be easier and quicker to gather the information needed to make a remedy determination in person. However, the Covid-19 pandemic brings other factors into play, as already noted, such as risk and difficulty of travelling to hearing centres. In these circumstances, we would expect judges to start from the premise that they should normally gather the information they need to determine remedy by means of a telephone hearing and/or by sending written questions to a claimant, designed to elicit the required information.
Judicial mediation hearings, which are normally conducted in-person, may be able to take place by video or telephone conference call.
Some types of claim normally require to be heard by an Employment Tribunal constituted as a full (three person) tribunal. However, it is possible for such claims to be heard by an Employment Judge and one member or by an Employment Judge alone with the consent of both parties. Employment Judges, in furtherance of the overriding objective, should bear these provisions in mind and take the opportunity to explore with parties, in appropriate cases, whether such consent may be forthcoming in circumstances where it has not been possible to constitute a full tribunal for Covid-19 related reasons.
It is undoubtedly the case that Employment Judges will be asked to make Orders to address the consequences of Covid-19, or to take into account one or more Covid-19 factors, when deciding whether or not to make an Order. For example, it is clearly foreseeable that postponement applications and requests for extensions of time may be made for Covid-19 related reasons. Similarly, it may be that witness Orders are granted for individuals who are not available to attend a hearing for Covid-19 related reasons. When considering whether or not to make an order, or vary or revoke one already granted, for Covid-19 related reasons, Employment Judges will expect parties to provide whatever evidence is available which shows or tends to show that the reason put forward for the application is a valid Covid-19 related one. Similarly, it will be of assistance to Employment Judges if those making postponement applications can set out any steps they have taken in an effort to avoid a postponement being necessary.
During the pandemic it is possible that Employment Judges may be based for all or part of the time at locations other than Employment Tribunal Offices. Parties should bear in mind that if requests for case management Orders or other correspondence is sent to the tribunal electronically then this will assist in ensuring that case management referrals can be made to the judge expeditiously by electronic means, thereby furthering the overriding objective.
Rule 47 allows a Tribunal, in the event of non-attendance by a party, to dismiss a claim or proceed with the hearing in the absence of a party. Any party who is not able to attend for Covid-19 related reasons, and who does not wish either of these steps to be taken, should do all they can to inform the Tribunal Office of the reason for nonattendance in advance of the hearing so that this information is available to the Employment Judge who is to hear the case.
Rule 60 refers to the manner in which decisions ‘made without a hearing’ are to be communicated to parties. If any party considers that a decision which would normally be taken at a hearing, is one which could be made without a hearing, they should make a written application. That application should explain why the decision can be made without a hearing and still be in accordance with law.
Orders and judgments can be made by consent. If parties are able to agree in writing on the terms of an order or judgment a Tribunal may make such an order or judgment. Parties are encouraged to cooperate with each other so that, where possible, applications can be made under this Rule.
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