Pandemic pandemonium: Summary of current ET/EAT advice and practical ideas for how to approach litigation now

There have been numerous pronouncements over the last three days in respect of ET and EAT hearings. In this note, Olivia Faith Dobbie summarises the position as of late afternoon on 20 March 2020 and sets out some ways forward to manage in unprecedented times including highlighting a new “proof of concept” video which Cloisters is developing.

AT A GLANCE

Employment Tribunals

From the 19 March 2020 Presidential Message:

All in-person hearings listed for 23 March 2020 and onwards are automatically vacated and the first day converted to a telephone PH (case management) to discuss how to best implement the Presidential Guidance of 18 March 2020 (unless the Tribunal informs the parties otherwise in individual cases). 

From the 18 March 2020 Presidential Guidance:

In reliance on the overriding objective and Rule 46, parties and Tribunals are encouraged to make creative use of electronic communications (video conferencing, skype, phone etc) to maximise the number of hearings of ALL kinds that can proceed, provided such arrangements are compatible with the Overriding Objective and the requirements of the ET Rules (including the interests of justice).

Employment Appeal Tribunal (London)

From the 20 March 2020 Notice from the President of the EAT:

All full hearings currently listed to be heard with all parties present in the EAT in the Rolls Building, London, between 23 March 2020 and 9 April 2020, shall now be converted to an Appointment for Directions and be heard by telephone (unless in the individual case the EAT directs otherwise). The Appointment for Directions will consider the re-listing of the appeal, the possibility of conducting the hearing via Skype or other means of electronic communication and any other matters considered relevant to the re-listing of the appeal.  

All Rule 3(10) Hearings and Preliminary Hearings listed to be heard with one or more parties present in the EAT in the Rolls Building, London, between those dates shall be heard by telephone (unless in the individual case, the EAT directs otherwise).

IN MORE DETAIL

The ET Presidential guidance of 18 March 2020 states:

  • Parties are encouraged to be creative and propose all and any resources to allow hearings to proceed or cases to be progressed during the COVID-19 pandemic. This includes the possibility of hearings by telephone / video for all types of hearings, not just for closed PHs (for directions).
  • Parties should start from the premise that hearings for delivering judgments or to receive legal submissions should now be done in writing.
  • In cases where default judgment has been issued because of a failure to present an ET3, the claimant should presume that the remedies hearing will be conducted by telephone or the requisite evidence gathered by written questions and answers.
  • Judicial mediations may be possible by video / conference call.
  • Where it is not possible to convene a full tribunal panel for COVID-19 related reasons, Judges might seek the parties’ consent to proceed with just one wing member or a judge alone. 
  • When seeking postponement of Orders or changes to the normal Rules for COVID-19 related reasons, parties will be expected to demonstrate some evidence that the need is due to COVID-19 related reasons.

https://www.judiciary.uk/wp-content/uploads/2015/03/Presidential-Guidance-ET-Covid19.pdf?mc_cid=642db77d9d&mc_eid=a4df82c5c3

The Message from the Presidents of the ETs for Scotland, England and Wales (of 19 March 2020) states:

“ … from Monday 23 March 2020 all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) 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 18 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.”

It is notable that the ETs communications are open-ended (whereas the EAT has limited its guidance to the period to 9 April 2020).  Hence, we will have to await further guidance from both Tribunals in respect of future hearings given that Boris’ current (optimistic?) estimate is 12 weeks of pandemic pandemonium.

PRACTICAL IDEAS FOR THE FUTURE

  • The use of electronic ‘attendance’ at a hearing or progressing matters without a hearing (in writing for example) are now strongly encouraged to ensure as many cases as possible can progress during the COVID-19 pandemic.  We at Cloisters believe that substantive hearings can take place remotely (including with witnesses) and have started today to formulate proposals which could contribute towards the creation of a possible protocol and guidance so as to make this happen.  In particular, we believe that Teams from Microsoft offers exciting functionality.  We note that some trials have started by Skype but we are not persuaded that this offers sufficient functionality as per the recent Law Society Gazette piece.  In addition to reaching out to the judiciary we will be producing a short “proof of concept” video very soon.
  • To make the planned ET telephone case management hearings as meaningful as possible, parties should start liaising with one another and being as open as possible about the length of trial bundles, numbers of witnesses and areas of factual dispute.  We predict that Judges will be far more willing to list remote hearings relating to substantive issues if the parties can provide clear guidance on the scope of these issues.
  • Start upskilling your litigation teams now.  We imagine that there will be increased use of electronic bundles for all sorts of practical reasons going forward.  Being able to bookmark pdfs, highlight, paginate and make pdfs searchable will be real game changers.

OLIVIA-FAITH DOBBIE, Cloisters