How the Employment Tribunals are dealing with Coronavirus: evolving Presidential Guidance and Directions

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In light of the COVID-19 pandemic, the Employment Tribunals are no longer conducting hearings in-person. Instead, the Presidents of the Tribunals have directed that all in-person hearings are converted to telephone or video preliminary hearings, at which the judge and parties will consider how to progress the cases. This direction applies to all hearings listed to commence on or before Friday 26 June 2020.

This means that there will be no in-person hearings in the Employment Tribunals before Monday 29 June 2020 at the earliest. However, given the speed at which the situation is changing, the direction may well change again. The direction itself notes that it will be subject to ongoing review, with the dates 29 April 2020 and 29 May 2020 noted for scheduled reviews. We will continually keep this post updated as the situation evolves.

The relevant information is contained in Presidential Guidance issued on 18 March 2020 (available here), accompanied by a direction issued on 19 March 2020 and updated on 24 March 2020, following the imposition of restrictions on travel and work by the Government. The full text of this direction is quoted in the next section. The second section of this note considers the Presidential Guidance. Although some of that guidance has been superseded by the new direction, it remains relevant to how parties should approach case-management issues and telephone hearings generally, and in particular to hearings listed for after Friday 26 June 2020.

Direction issued by the Presidents of the Employment Tribunals on 19 March 2020 and updated on 24 March 2020

“In view of the rapidly changing circumstances created by the Covid-19 pandemic, the Presidents of the Employment Tribunals in England & Wales and in Scotland have directed that from Monday 23rd  March 2020 all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) listed to commence on or before Friday 26th June 2020, 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. This will provide an opportunity to discuss how best to proceed in the light of the Presidential Guidance dated 18th March 2020, unless in the individual case the President, a Regional Employment Judge or the Vice-President directs otherwise.  If the case is set down for more than one day then parties should proceed on the basis that the remainder of the days fixed have been cancelled. For the avoidance of doubt, this direction also applies to any hearing that is already in progress on Monday 23rd 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. In person hearings listed to commence on or after 29th June 2020 will remain listed, in the meantime, and will be subject to further direction in due course.  The parties remain free to make any application to the Tribunal.  

This Direction will be subject to ongoing review and in particular will be reviewed on 29th April 2020 and 29th May 2020 to take into account the circumstances as they then stand in connection with the Covid-19 pandemic”

Presidential Guidance on Employment Tribunal Hearings

The key takeaway from the guidance was that Tribunals will be ordering telephone hearings, and dealing with matters just through written submission, wherever possible. That has now been superseded by the direction excerpted above. However, the guidance draws attention to a number of rules that may come into their own in the context of the pandemic. It may also be relevant to the approach to cases listed for after 29 June 2020, at which point the current direction will have expired, but the guidance may still be in force.

The guidance doesn’t introduce any mandatory rules and instead leaves it to each Tribunal panel to decide on the best approach to take in any given case, subject to the new prohibition on listing or carrying out in-person hearings before Monday 29 June 2020. After this date, if an updated direction has not been issued, the flexible approach in the guidance will apply.

Instead of hearings where parties have to attend in-person, the guidance envisages increased use of the following procedural measures:

  • Preliminary hearings conducted by telephone. In light of the Presidents’ direction, such hearings are now the only option for the time being. Even if the Presidents direct that in-person hearings may take place after Friday 26 June 2020, the guidance sets out that parties should start from the premise that a new case-management hearing will take place by telephone, rather than in person: [7]. Similarly, in-person hearings already listed may be converted to telephone hearings, and parties are encouraged proactively to engage with each other to convert hearings: [8]-[9], [15].
  • Parties should also be prepared to assist the Tribunal by preparing written submissions in advance of telephone hearings that might previously have been held in person: [6]. This is an important consideration. It will inevitably be more difficult to conduct hearings over the phone than in person. Given that, Tribunals are likely to be assisted more than ever by lists of issues, agendas and so on for case-management hearings. These should be filed with the Tribunal as early as possible to maximise the chance that they will reach the judge in time. Parties should have laptops ready to resend documents to the Employment Judge’s direct (work) email address, if requested, where documents have not made it through in time.
  • The use of telephone or video judicial mediations is encouraged, so are to avoid the need for further Tribunal hearings altogether. Parties should be alive to this possibility at the time of fixing such hearings, in particular: [13].
  • The parties’ agreement to the use of a single judge, or a judge and one wing member, where a full Tribunal cannot be constituted for Coronavirus-related reasons (for example because wing members are ill) is also encouraged: [17]. This aspect of the guidance would seem to be largely irrelevant for the time being in view of the new direction (subject to comments below on substantive hearings).
  • The sending of correspondence to the Tribunal electronically rather than in hard copy is strongly recommended, all the more so now that it seems unlikely that many, if any, staff will be present in Tribunal buildings. This is because electronic documents are much easier than paper bundles to forward on to judges if they are working from home: [19]. Though not mentioned in the guidance, the same is true for sending documents to clients, opponents and other lawyers.

The guidance on substantive hearings (i.e. final hearings or substantive preliminary hearings) would seem to be largely irrelevant for the time being, given the bar on in-person hearings and their conversion to one-day case-management telephone hearings, because:

  • Although it is possible to hold a substantive hearing without the parties present, in the case of a public hearing that is only possible if members of the public are able to see and hear whatever the Tribunal can (rule 46, Employment Tribunal Rules of Procedure).
  • The only way of achieving that is for the hearing to be broadcast publicly, i.e. on a speakerphone in the Tribunal room, with the parties and the judge attending remotely and with members of the public allowed access to the Tribunal. In the current climate, however, it is doubtful that members of the public will be allowed to leave their homes to observe Tribunal hearings, that they will have access to Tribunal buildings, or that enough staff will be present to set rooms up appropriately. We also understand that the Central London Employment Tribunals have closed entirely, with all hearings (both in-person and telephone hearings) having been postponed, until Monday 30 March 2020 at the earliest.
  • Since most substantive hearings must be held in public, under rule 59, it follows that only case-management hearings and private hearings will be able to be heard remotely, at least for as long as any Tribunal buildings remain (in practical terms at least) closed. The Tribunal has the power, under rule 50(3)(a), to order that proceedings take place in private. However, that power is quite closely circumscribed by rule 50(1)-(2), and as a result its use is unlikely to become widespread.
  • It is possible, if the crisis necessitates a longer-term lockdown, that Tribunals will invest in more video and streaming capabilities that offer the ability to make a remote hearing public. However, for now at least, that seems unlikely.
  • The new presidential direction is subject to contrary directions from the President, a Regional Employment Judge, or the Vice-President. It is conceivable that these powers might be exercised to allow, for example, the final days of an extremely long trial to go ahead in-person if necessary. However, even that is very doubtful.

If at a later stage the new presidential direction is withdrawn but the guidance remains in force, parties should bear in mind that, under the guidance, there is still an obligation to avoid in-person hearings where possible.

Parties should also be aware, from the guidance, that Judges may use telephone preliminary hearings as an opportunity to further narrow the issues or to explore the scope for settlement: [15]. The parties should come prepared to discuss such matters. On a practical note, parties should be aware that commercial settlements are likely to become more attractive in light of the long delays, and increased preliminary costs, that Coronavirus seems bound to cause.

Ben Mitchell
Michael White
24 March 2020

To all our clients - Coronavirus update