We are experiencing an increasing number of queries from clients who are concerned about the impact of the current pandemic on employment tribunal claims; in particular what is happening in relation to forthcoming Tribunal deadlines and hearings.
As with all things coronavirus related, this is a fast moving area which is subject to change as the situation develops, but as things currently stand, the Courts and Tribunals remain open for business - although it is not quite "business as usual".
The Presidents of the Employment Tribunals in England and Scotland have issued a joint statement setting out key recommendations for how Tribunals should conduct themselves in light of the current crisis. This guidance takes effect from 18 March 2020.
Their key recommendations are as follows:
- All parties should use electronic communication methods when dealing with the Tribunals - for example in relation to making applications for directions or postponements. Many judges may not be physically present in Tribunal buildings and this will make it easier for the administrative staff to forward on to them for consideration.
- Tribunals should use video conferencing and Skype for as many purposes as possible, including conducting hearings of all kinds (including final hearings). This is for the obvious reasons of avoiding physical interactions with others, but also seeks to try and avoid wholesale postponements and delays to hearings.
- There will be a presumption that all Case Management Preliminary Hearings will take place by telephone or other electronic means unless there is a pressing reason why this should be done in person).
- If parties consider that an hearing which has already been scheduled to take place in person could be turned into a telephone hearing, they should notify the Tribunal Office as soon as possible, so this can be considered before a Judge.
- The statement recognises that decisions will need to be made on a case by case basis as to whether this is appropriate, and there may be good reasons why this is not consistent with the principles of the overriding objective.
- Where a panel at a hearing would normally consist of three members, Judges have been asked to encourage the parties to consent to a hearing in front of two members if one is unavailable to attend.
- Any party who is unable to attend a hearing due to the virus should notify the Tribunal as soon as possible; if they fail to do so, they risk dismissal of the claim or that the hearing could go ahead in their absence.
Importantly, existing deadlines and Tribunal Orders remain effective; if a party is unable to comply due to issues they are facing as a result of the virus, they will need to notify the Tribunal and obtain an extension in the normal way (or it may be possible to agree an informal extension with the other side).
At the local level, Regional Employment Judge Parkin has directed that all case management hearings in the North West region will now proceed by telephone conference call. If there is a pressing reason why this should not be the case, you must write to the Tribunal explaining why not, copying in the other side and giving them the chance to make representations. He has also asked that any applications to postpone hearings should be made as soon as possible, on notice to any other parties.
Of course, this could all change if the Tribunal system is shut down by the Government as part of a wider lockdown. We will be posting further updates as the situation develops.
Our final words are to encourage Tribunals, Employment Judges and all those who seek to access justice through the Employment Tribunal system to approach the unprecedented circumstances we now face 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 in particular the overriding objective.