New Employment Tribunal Advice

18th March 2020

The Presidents of the Employment Tribunals of Scotland and England & Wales have issued new guidance (the ‘Guidance’) on the conduct of hearings and claims amid the COVID-19 pandemic in accordance with the Employment Tribunals Rules of Procedure (the ‘Rules’). We summarise the key changes below:

Moves to Electronic Hearings:

  • Rule 46 of the Rules allows a hearing of any kind to be conducted by electronic communication. Tribunals are now implored to put this ‘at the forefront of their minds’ to further the overriding objective.
  • Electronic communication is defined as including telephone conferencing, and the use of video conferencing technology including Skype. The use of technology is said to further the overriding objective of the Rules by reducing the stress and health risks which an in-person hearing would cause.
  • Regional Employment Judges are instructed to look at existing listings and determine which in-person hearings could be converted to hearings by electronic communication.
  • Parties must cooperate with each other and assist employment tribunals so that existing in-person hearings can be converted to hearings by electronic communication.
  • Parties must cooperate with employment tribunals and notify judges as soon as possible of a request to convert an existing in-person hearing to one by electronic communication.

Assisting with Electronic Hearings:

  • To assist litigants in person, tribunal judges are encouraged to consider issuing directions instructing underrepresented parties to read written guidance explaining relevant legal concepts which would otherwise be best explained at an in-person hearing.
  • Tribunal judges may also consider issuing directions instructing parties to gather information in advance of a hearing, which would otherwise be presented at an in person hearing.

Case Management Issues:

  • The Guidance says that postponement applications and applications for extensions of time because of the pandemic are foreseeable.
  • An application must demonstrate a valid reason related to the COVID-19 pandemic in order to be approved, and tribunal judges will be more likely to grant applications if it can be demonstrates that steps were taken to avoid postponement e.t.c.
  • Witness orders may be granted to individuals who can no longer attend hearings due to reasons related to the COVID-19 pandemic.
  • Since employment tribunal staff and officers are likely to be based in several different locations other than their usual offices, requests for case management orders must be sent electronically to ensure expeditious proceedings.
  • Tribunal Judges are directed to Rule 60 of the Rules, and the Guidance encourages Tribunal Judges to consider written applications for decisions which can be made without a hearing. Such applications should demonstrate clearly why such decisions can be made without a hearing in accordance with the Rules and the law.

Simons Muirhead Burton LLP have a dedicated Employment law department which constantly deals with contentious matters. If you require assistance with an employment related matter, please do not hesitate to contact us to see how we can help.