Lessons learnt from a remote Employment Tribunal Hearing

They’re like buses, Employment Tribunal Hearings. 

I have not been inside the Tribunal since pre-Covid-January, then, two of my cases were listed to start on the same day last week. One was a one-day judicial mediation, the other a five day complex discrimination claim; both to be heard remotely via the 'CVP' (cloud video platform) .

At the end of a tiring week, these were the lessons learned;

‘Bundles Part 1’; they are less flexible than in a face-to-face hearing 

It is common during evidence in a full hearing that a line of questioning takes you down a route not anticipated in the case preparation. That happened to us in our big case and overnight emails were sent with .pdf copies of holiday booking forms and other pieces of evidence not already in the bundle. Unlike at a hearing in person when extra pages are handed to a clerk to pass them on to members of the Tribunal, these emails did not always make it to the panel within 24 hours; their distribution being reliant upon the back office.

If in doubt, put more into the bundle and address the question of circulation early.

‘Bundles Part 2’; remind your client not to write on them 

In the physical Tribunal, there is a ‘clean bundle’ at the witness stand. It will make the hearing go more smoothly for witnesses to have copies of the relevant papers in front of them however they ought to be clean copies when they give evidence.

‘Holy Books'

For witnesses who prefer to be sworn in on a holy book, they need to provide their own. Otherwise, a solemn affirmation will be required. Either way, the Judge will start by saying 'repeat after me...'.

' Looks matter’

The Tribunal is required to see the witnesses give evidence. In our cases, the members of the Tribunal were all wearing the standard ‘office uniform’. Rightly or wrongly, impressions can be formed by ones’ appearance and the background on display.  

It was frustrating when the Claimant had to find a document from his emails which were stored on the same computer as the one being used to participate in the hearing, which gave the appearance of him being disorganised and it would have been almost unworkable if any of the witnesses were using tablets or mobile phone devices in which to participate.

It would have been very distracting too if our hearings were interrupted by pets or children. That did not happen but I confess to spending a long time trying to work out what was in the corner of the Claimant’s sitting room (I deduced it to be a Wing Chun Ip man wooden dummy used by practitioners of Kung Fu).

‘Have good kit’

The quality of the microphone in one’s device is very important. While it is easy to work with a grainy image, it is very hard to work with muffled or distorted sounds. Those witnesses with a boom microphone on a headset came across very well with the consequence that their evidence was given more efficiently.  

‘Remember to mute’

No matter how many times you remind people to turn off their phones, there’s always one… In our case a phone went off twice. Fortunately both times it was the Judge’s!

What was of far greater irritation, however, was ‘ping pong ping’ made by an unknown participant’s computer every twenty minutes or so (I think it was someone’s Facebook or LinkedIn account announcing notifications).

While Judges are in control of muting those who are not participating in proceedings, when one arrives in the ‘CVP virtual lobby’ microphones are on. There but for the grace of God did I not make any manner of embarrassing noises or soliloquies before remembering to mute!

‘Plug into the network and bagsy bandwidth’

Even with the best kit, a weak signal will affect connection. During cross examination of the CEO of the Respondent in our discrimination case it rained where he lived which slowed down his Wi-Fi connection. This slowed his evidence as he had to repeat and re-repeat his testimony for all to hear clearly.  

If you can’t plug into a network physically, go to the place with the strongest signal and do not allow other heavy use of the Wi-Fi at the same time as you are on line to the Tribunal; it could degrade your connection if, for example, someone on the same network was streaming video content at the same time that you were giving your evidence.  

‘Plan for longer’

The characteristics of a remote hearing tend to make things move more slowly and it felt as though the level of concentration required to keep on top of the evidence is higher than used when in a physical court room.  

Assuming more hearings will be heard remotely even after the Covid crisis has passed, in future, increase the estimate of the time that a hearing will take by 30% to cater for all of the idiosyncrasies of a remote hearing.

To conclude

We will get better at planning for and participating in remote hearings. Until we do, they feel like a compromise and it will be interesting to see if any applications to the Employment Appeal Tribunal will be made on the basis of problems perceived by parties who claim to have been disadvantaged in law by issues arising in a remote hearing sufficient to justify an appeal. For the time being I would prefer a physical hearing every time but it has to be noted that while the pace is slower in the remote setting, adherence to start and finish times seemed better; I have never been in an actual Tribunal and not have had to wait ages in the Respondents’ waiting room. However when the Judge said we’d be on-line at 1000hrs for our hearing last week, we were.

I head Thompson Smith and Puxon’s employment law team and regularly represent Respondents in the Employment Tribunal. Our clients are employers of all sizes and in all sectors, including regulated financial services and manufacturing businesses. Our offices are in the East of England and many of our clients are in London and the South East. Please do not hesitate to call me, without obligation, on 07771 542 740 for any advice or assistance.