Cloisters’ Employment barristers on Making virtual hearings in the Employment Tribunal work

Following the conversion of all hearings in the Employment Tribunal to telephone case management hearings, and the proposal that going forward some hearings could take place virtually, the Employment Group within Cloisters has been working hard to understand how virtual hearings could work in practice so as to ensure that they can be used in a broad range of circumstances.

To that end, we have created a “proof of concept” video of a mock Employment Tribunal hearing relating to a time point using Microsoft Teams (video is posted above). We believe that it demonstrates that virtual hearings are possible even where contentious evidence must be heard and considered by the Judge.

We have sent this “proof of concept” video to Senior Judiciary within the Employment Tribunal system and would welcome the opportunity to work collaboratively with the Employment Bar and solicitors in order to create a workable protocol for virtual hearings in the future.

In the meantime, the following technical features within Teams are worth emphasising as they reveal just how workable virtual hearings can be:

  • The Tribunal is able to control the start of the hearing by inviting individuals into the meeting via Teams.  It is possible to join a Teams meeting, via a link sent to an email address, just through any web browser so there is no need for participants to have downloaded the MS Teams software.  However, downloading Teams is free.  Teams can even be used on a mobile phone.
  • The Tribunal can control the point at which a participant enters the meeting, for example, by inviting a witness in at the point at which he or she is required to give evidence.
  • The Judge is able to keep track of who is in attendance within the virtual hearing because a list of participants is displayed on the screen at all times.  This also helpfully highlights who is speaking at any point.
  • Participants within a virtual hearing have the option of muting their audio and switching off their cameras. This means that Instructing Solicitors can participate in a virtual hearing but without being seen or heard (other than in the participants list). Clients who are not actively participating in the meeting could also adopt the same practice.  Equally, members of the public could “attend” open hearings on the same basis.
  • Participants can easily “drag and drop” documents from individual computer systems into Teams. For example, agreed lists of issues, timetables and authorities can be quickly shared with all participants in a virtual hearing. In the Cloisters’ “proof of concept” video this function was used in order to share last minute documents with the Judge.
  • Teams has a “chat” function which means that participants within a virtual hearing can also simultaneously “post” messages which are then seen by everyone.  The “chats” appear on the right hand of the screen and also record when a document has been “dragged and dropped” into the hearing.  We foresee a number of possible uses for this function.  For example, it could be used by Counsel to indicate when they wish to speak or raise an objection.
  • Participants to a meeting can choose to “show” documents which are being displayed on their screen.  In the Cloisters’ “proof of concept” video, this function was used in order to allow the Judge to show the witness a copy of the affirmation; and the Claimant’s Counsel to show the Claimant a copy of her witness statement for the purposes of confirming her evidence. 
  • Inevitably, there will be times during a hearing where a representative needs to take instructions or confer with another individual. This can be easily accommodated within a virtual hearing by either muting the relevant audio or alternatively communicating by email or some other form of technology such as WhatsApp.  If the advocate and their client or instructing solicitor have created their own “Team” (on Teams), they can use the private messaging function on Teams itself. Ultimately, this would be the choice of the parties and a matter to be resolved before the hearing commenced.  Judges could confer with Wing Members by also simply muting their audio or by briefly pausing the hearing and then re-inviting everyone back in.
  • If felt desirable, it is possible to record hearings or for a transcript to be created automatically by Teams. This is how we created our “proof of concept” video. This might be one way in which open justice could be assured without necessarily allowing members of the public to actively participate in hearings.
  • Finally, it is worth noting that, as parties become more proficient with Teams, it may be possible to introduce new ways of working which could speed up the administration of justice.  For example, it is possible to collaborate on meeting notes within Teams which could allow parties to draw up a list of directions in real time. Equally, a stage may be reached where a list of issues could be drafted collaboratively in front of the Judge between participants.

We are excited to share the “proof of concept” video with the legal community and would welcome any thoughts or ideas as to how the process could be further improved.  If you have any ideas, please don’t hesitate to contact Dee Masters at who is the Head of the Employment Group.

In the meantime, we will be encouraging Judges at telephone case management hearings to utilise this technology in appropriate cases.

Many thanks to the people within Cloisters who made the “proof of concept” video including Tom Brown, Claire McCann, Nathaniel Caiden (who provided the technical know-how, as well as participating in the recording) and Dee Masters.

22 March 2020