Employment Tribunal's Covid-19 Powers: Guiding the Objective, Schemes and Mind Maps of Communication

Download Employment Tribunal's Covid-19 Powers: Guiding the Objective and more Schemes and Mind Maps Communication in PDF only on Docsity! JUDGE SIMON JUDGE DOYLE PRESIDENT PRESIDENT EMPLOYMENT TRIBUNALS (SCOTLAND) EMPLOYMENT TRIBUNALS (ENGLAND & WALES) PRESIDENTIAL GUIDANCE IN CONNECTION WITH THE CONDUCT OF EMPLOYMENT TRIBUNAL PROCEEDINGS DURING THE COVID-19 PANDEMIC This Guidance is issued in accordance with Rule 7 of the Employment Tribunals Rules of Procedure (“the Rules”). The Rules are set out in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Employment Tribunals must have regard to this Guidance but they are not bound by it. This Guidance has effect from 18 March 2020. Background 1. The overriding objective of the Rules, as set out in rule 2, is to enable Employment Tribunals to deal with cases fairly and justly. Tribunals are required to seek to give effect to the overriding objective when interpreting, or exercising any power given by, the Rules. Parties and their representatives are required to assist Tribunals to further the overriding objective, and in particular are to cooperate generally with each other and the Tribunal. 2. During the Covid-19 pandemic Employment Tribunals, seeking to apply the overriding objective in rule 2, will need to take into account the impact of the pandemic when assessing what steps may be taken to give effect to the overriding objective. The purpose of this document is to provide: (a) Tribunals with guidance as to how certain of the powers provided by the Rules may be exercised, during the pandemic, to give effect to the overriding objective and (b) information to parties about steps Tribunals may take (including making orders and giving directions) during the pandemic, when exercising their powers under the Rules and how parties can cooperate with Tribunals to further the overriding objective. 3. This guidance is issued against the backdrop of a number of constraints that are likely to impact upon what can realistically be done, in terms of Employment Tribunal practice and procedure, in response to the possible effects of Covid-19. For example:  not all Employment Tribunal Offices have ready access to video conferencing equipment;  if Employment Judges are working at locations other than Employment Tribunal offices, and need documents to be scanned and case management applications to be emailed to them, this will depend on there being sufficient staff and equipment available in those offices to carry out these tasks;  not all hard copy documents received in a case are capable of being transformed into a digital format;  if case files/hearing related documents, which are not available in digital format, are needed by Employment Judges working at locations other than Employment Tribunal offices this will depend in some instances on secure delivery services being available to transport those documents;  given the range of Employment Tribunal hearings that require to be conducted in public, in terms of the Rules, this will limit what can be done from locations not open to the public (for example, a judge’s private residence). Hearings conducted by electronic communication 4. Rule 46 allows a hearing of any kind to be conducted, in whole or in part, by use of electronic communication (including by telephone) provided the Tribunal considers it just and equitable to do so and, where a hearing is to be in public, members of the public can hear what the Tribunal can hear and see any witness as seen by the Tribunal. Electronic communication can include use of video conferencing and skype. We consider that during the pandemic Tribunals, and parties, should have this power at the forefront of their minds when considering how best to further the overriding objective in the current circumstances. If a hearing takes place by electronic communication this will reduce the risk to parties and representatives, and related worry and stress, which may be occasioned by travelling to hearing centres and interacting physically with a range of individuals. It may also mean that a hearing can take place expeditiously which might otherwise be delayed due to Covid-19 related difficulties (such as travel disruption or inability to appear in person due to self-isolation). Paragraphs 5-14 set out our guidance on this topic in more detail. 5. Employment Tribunals already conduct a significant number of case management preliminary hearings, which are private (rule 56), by telephone. However, a large number of such hearings take place in person at tribunal hearing centres: it is not the objective of this Guidance to suggest that in-person hearings currently take place without good reason nor that in-person case management hearings should no longer take place at all. However, it may be that, with the support and cooperation of parties (particularly when both are legally represented), it is possible to reduce the number of in-person case management hearings that need to take place by relatively small changes in practice. 6. For example, it may be that there is scope for the tribunal to issue written orders and directions to gather information about some of the issues which a judge might, in normal circumstances, consider are best discussed with parties at an in-person hearing. It may also be that some of the information judges regularly provide to unrepresented parties at in-person hearings, to assist them in understanding key legal concepts in a case, could be provided in writing before any hearing takes place, with information also being provided at that stage about sources of further information and advice. A direction could be made that parties read the written information, formulate questions they may have for the judge and prepare their responses to any orders issued (in draft) in advance of a telephone case management hearing. Proceeding in this way may assist in making a telephone case management hearing an effective means of making good progress in managing the case, even if it is one that the judge might normally have assessed as one which would benefit from an in-person hearing. If parties cooperate with each other, and the tribunal, in this process it could result in fewer in-person case management preliminary hearings being required.