Remote Hearings During the Pandemic
Prior to the start of the Covid pandemic, shorter preliminary hearings where all parties had lawyers would often be held via phone, but for longer preliminary hearings, any case where any participant did not have legal representation, any case involving evidence being given, and all final hearings, were always held in person.
Covid has introduced Cloud Video Platforms (“CVP”) as a means of holding hearings, using their own system which is essentially very similar to Zoom. Although telephone hearings do sometimes still take place where these are both likely to be straight forward and both sides have lawyers, the vast majority of hearings take place using CVP.
At present the rules in England and Wales state that the following hearings will default to being held by video:
- Preliminary hearings listed in private for case management purposes (although these can also be by telephone).
- Preliminary hearings in public to determine a preliminary issue (e.g. time limits, employment status), or to consider an application to strike out or for a deposit order.
- Final hearings for simpler matters for example unpaid wages, notice, holiday pay, and redundancy pay.
- Other hearings to consider reconsideration and costs.
By contrast final hearings for more complex matters will vary. For unfair dismissal claims, the default at present outside of London and the South East is for these to be held via video platform, but the intention is for this to decrease as time goes on. For discrimination and whistleblowing claims, again outside of London and the South East, these will generally be held in person.
By contrast, in London and the South East, the default for all hearings is for them to be held via video. The reason being that delays in that area are especially bad and remote hearings enable the tribunal to deal better with the backlog, as they do not require so many tribunal rooms and tribunal staff in order to hold a hearing.
There are people, particularly those with disabilities, for whom these default provisions may not be suitable or compatible with their rights to access justice. Some may want a hearing to be held by video even though that is not the default, for example, some may have carried on shielding for much longer than government advice, or suffer from say, agoraphobia and will want to avoid ever leaving home and attending a tribunal.
Others, may struggle with arthritis and using computers, or have communication difficulties and will want all hearings to be conducted in person. Not all reasons for a preference will be connected to disability, but if you do not have a computer yourself or live in an area with poor connections, the tribunal will generally expect you to try and stay with a family member or friend and use their facilities.
When making a request to go against the default it is important to stress how what you want – whether everything via video platform or all hearings in person – is necessary for you to access justice because of your health issues and disabilities.
Although any final decision on how a hearing will be conducted will be decided by a Judge, taking account of any legal restrictions at the time and how long the case has been ongoing (which may restrict options for in-person hearings), it is important for claimants with a particular need for hearings to be held in either way to say so, and why.
This can be done within the claim form/ET1, which specifically asks if there are any disability related adjustments which are needed, or it can be stated and arranged at a later stage, whether in writing to the tribunal with a request and explanation or making a request at a preliminary hearing (which would always be held via video) when making arrangements for the final trial.
It is important though for anyone with a strong preference to go against the default as set out above, to make the tribunal aware of their needs sooner rather than later. A request to change a hearing that has already been listed, especially if this is to change it to being from video platform to in-person, will almost always lead to the hearing being postponed, which in turn will make Judges less willing to grant the request.
Despite having been introduced only as a consequence of the pandemic and associated lockdowns, the use of video platforms for preliminary hearings especially seems likely to be permanent, even when both Covid and the significant tribunal backlog have been dealt with.
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