On Friday 12 June I, alongside colleagues in chambers, delivered a video seminar. My main topic was on vulnerable parties but as part of my intro remarks, I included a couple of throwaway slides about ETs conducting trials, even in discrimination cases, with a judge sitting alone and, within those remarks, I set out the law about how this can be achieved.
The questions I received post-seminar from delegates have all focussed on this point, on two throwaway slides. Rather than the 30 slides, and the 45-minute, carefully crafted, seminar on vulnerable parties. I’m not bitter. Well, not much. Ok, quite a lot. Well, in truth, I’m really, really bitter about it. But I can let it go.
The Albion seminar also heard from Matt Jackson, about conducting CVP (Cloud Video Platform – think an agricultural version of Zoom) hearings and he gave us all some really interesting techniques and tips about how to do these properly and effectively. And this dove-tailed with a number of my team having conducted CVP hearings in the couple of weeks running up to the seminar.
If you’d like to watch that seminar the recording has been uploaded here.
One hearing, conducted by Alec Small for the respondent, was in fact a multi-day trial, involving employees in the criminal justice system. The case, at its heart, was a Burchell UD vs race discrimination debate. There were multiple witnesses, advocates on behalf of claimant and respondent, credibility of the witnesses was a central issue. The parties used a combination of PDF electronic bundles and a few ‘extras’ by email. All conducted via CVP.
By all accounts it went very well, especially so for the respondent in Alec’s case. A link to the judgment and reasons can be found here.
Alec’s case took place in the South-West region where, from having discussions with my team who practise around the country, my impression is that the South West is a few weeks ahead of other regions in terms of the adoption of the tech. Just on Monday of this week, Bristol ET hosted four in-person hearings, whilst the rest of the Civil Justice Centre was largely empty. As I understand it, other regions are catching up rapidly, and this is to be welcomed.
The Problem(s) and the Bottleneck
Personally, I have always preferred in-person hearings. I believe advocacy is most effective when everyone is in the same room. Others who have had the misfortune of watching my advocacy may strongly disagree that my presence, in any way, enhances my clients’ chances.
But I have to accept that even when social distancing is reduced to 1m plus from 2m, there are going to be many cases and many tribunal venues where this will still prohibit safe, in-person trials, especially where natural ventilation cannot be maintained.
Assuming that I’m right about this, it means that for discrimination-type cases, those requiring a panel of three to adjudicate, these will be the most difficult to list, because it requires bundles (electronic or otherwise) to find their way to three panel members, in three different locations. What about the last-minute documents that, whatever the EJs may say about it, even the best litigators sometimes need to add to the bundle? How is that organised when the referees are sitting in three separate locations?
But another problem that all of us who use CVP know is that CVP is very ‘bandwidth hungry’ when compared to the other platforms. Like beginning a tube of Pringles, our appetites are not satiated until we’ve finished a foot of them. CVP is the same with bandwidth. That means that for any parties tuning-in using 3G or 4G, CVP may be a very unsatisfactory experience. That’s in addition to the problems caused by, and already reported by EJs, having to conduct hearings where a witness is dialling-in whilst on the move, or whilst attending to other tasks. Neither is conducive to the witness providing quality evidence.
But just as importantly, or even more importantly, this CVP bandwidth problem applies to the panel members. If using a 3G or 4G link, or an old fashioned copper wire broadband connection, there is every chance the connection will be of insufficient quality or stability to conduct an effective hearing. The risk of course is that the panel members misses something important, or misses intonation, sarcasm… or that flash of anger.
There is already a view that these ‘moments’ are lost in a remote vs in person hearing, whether true or not, this suspicion is only amplified by a dodgy connection or platform. Hardly the foundations on which to base a trusted labour law tribunal.
Conversely, for the most part, whether working from a HMCTS building or from home, EJs appear to have sufficiently strong internet connections to conduct hearings properly and fairly and, even if they don’t, that’s only one connection issue to resolve, rather than three.
A CVP Bottleneck?
But CVP isn’t a perfect fit for the ETs. Putting to one side the technical issues (I have heard rumours that CVP is due a significant upgrade fairly soon, the main tension in the ETs is the human element. As employment practitioners know, Tribunal clerks wear many different hats. Ordinarily, once the hearing has started, they’re away into the back office ploughing through the mountains of paperwork that surround them.
This way of working can be distinguished from, say, the Crown Court, where the clerk remains in situ in front of the judge. But what’s the problem in relation to CVP?
The problem is this, CVP requires a clerk to operate it. So it suits the working practices of the Crown Court, but suddenly, an underfunded, understaffed ET using CVP requires a clerk, who otherwise would be doing other work, to remain to operate it. This puts the stretched system under even greater strain.
Much has been said in recent days about the delays in ET listing. We know the reasons why. Even prior to CV19, there was chronic underfunding of the Tribunals, a backlog was beginning to build and quite simply, there were insufficient numbers of EJs and fee-paid EJs to do the work. Who would want to be an EJ in the current environment? But even prior to CV19 we were listing cases in 2021 as a matter of near regularity.
But this has been compounded by CV19, we’re now listing matters well into 2022, and this cannot be right. Memories fade, financial burdens increase, injustice eats away at the soul. Such delays are unacceptable.
The (Part) Solution – Section 4(3)(e) ETA 1996
We’ve all been in cases where a Tribunal has only been able to secure one panel member, or a panel member has had to drop out due to illness or a potential conflict. These things happen. We advise our clients that our preference would be for a panel of three (or not, depending on the case being run) but if we don’t go ahead that day, the delay until re-listing will be x months. Our clients ordinarily decide to press ahead.
Therefore we all know that even in discrimination type cases, we can go ahead with fewer than three but, in the current situation, it may be worth re-visiting how we view this power. In these circumstances, with these delays, rather than this power being deployed in response to the last minute ‘unexpected’, maybe we, as lawyers representing our clients effectively and fairly, should be proactive about its use.
Section 4(3)(e) of the Employment Tribunals Act 1996 allows a discrimination-type trial to be conducted by a judge sitting alone if the parties agree to it. The judge may not agree, but the first gateway is that the parties agree to do so.
If the parties can agree (and why wouldn’t they to avoid the delays we are facing?), then a simple application, in the usual manner, copying your opponent etc, setting this out will often be sufficiently persuasive for the Tribunal to agree to the application.
Quid Pro Quo
However, if the parties are going to assist not only their own clients, but let’s not forget, also to assist the Tribunal in listing matters more speedily and more flexibly, the EJs must respond in kind. As an example, in a trial last year an EJ mandated that a bundle page limit be set at a given number of pages. The parties worked furiously hard to get the page numbers down but couldn’t get it to the threshold. A joint application was made in good time to lift the limit. It was refused.
The parties worked furiously hard to reduce the bundle still further, cutting and pasting emails into chronological order, removing headers, selecting individual pages from employee handbooks, all the time-consuming work one would expect, but still couldn’t get down to the threshold. Another joint application was made. It was refused.
The instructing solicitors on both sides then spent four days distilling 350 pages of documents into a proposed agreed chronology, an intensive back and forth to arrive at a fair and balanced document. It would have taken an EJ an extra two or so hours to read these pages in sufficient detail, it took the instructing solicitors four days.
But this intransigence can’t be appropriate in the new normal. Solicitors and counsel organising CVP hearings, making sure witnesses are staggered properly, that their technology works, that they have copies of the right bundle at the right time, it all takes a huge amount of additional time, effort and expense, over and above a normal hearing.
So if we are going to assist the Tribunals (over and above our professional obligations), the Tribunals must assist the lawyers. The Tribunals must act with greater flexibility, to step away from the ‘this is how I do things’ approach we encounter. In response to an application from a solicitor or barrister, EJs need to start asking why not? To ask, why is this a good idea? … rather than looking for reasons to say no.
Flexibility, from everyone, is what is going assist in listing cases more quickly, more conveniently and more justly for all. ETs can have conversations with Chambers: are there any cases where they’re on both sides; is it convenient to the advocates and solicitors, to squeeze that three day case in next week? Is it worth ensuring that bundles and statements are ready nice and early, counting forwards from preliminary hearing, rather than backwards from trial date (acknowledging that many Tribunals do adopt this approach)?
But note, the above suggestions are all framed as Tribunal requests, not orders. The above is not a recommendation for the Tribunal to begin to use ‘backers’, that’s the bad old days. This is a recommendation for a genuine, two-way conversation, between professionals, who have mutual respect for one another. If the EJs don’t approach things in this way, it will not work.
But also, due to the limitations of navigating a bundle over CVP, or assisting the judge to navigate a bundle over CVP, I do wonder whether a judge should, as a matter of course, add an extra 25% allocated reading time to the time estimate. We all know that a bundle is far easier to navigate, especially remotely, if the judge is more familiar with the papers. Overall, it will save time and avoid the dreaded part-heard trials.
But let’s not forget the other options. If we accept that CVP requires a clerk, a Tribunal may be a little more reluctant to use CVP, or, at the very least, it may take longer to list the case as the Tribunal and parties wait for sufficient availability of clerks.
So what are the other options? The first is to remember that the telephone remains a perfectly viable method to conduct prelims, or for the Tribunal to receive and adjudicate upon complicated, multi-faceted legal argument. Tribunals have been ahead of the game in this regard and are well used to it. It shouldn’t be discarded, just because it isn’t new and shiny. A telephone hearing will often receive an earlier listing.
And finally, let’s not neglect our social animals. As Bristol has shown in the past few days, in-person hearings are possible and this will only improve when social distancing is reduced to 1m plus. But please, please remember, everyone will require their own evidence bundle and their own witness statement bundle! For once, we must do the opposite to what we tell our children, we don’t share.
So let’s all review our own case load:
- What are the cases that we can get ready for trial sooner rather than later?
- Can we agree with the other side to accelerate the case management timetable?
- If we can be ready earlier, why not tell the Tribunal we have a two day, two witness case ready to go, here are the available dates of the advocates and witnesses, can we list it sooner?
- What cases do we have that would ordinarily require a panel of three?
- Can we obtain instructions from our client that they’d prefer a judge sitting alone rather than face a long delay?
- Can we agree this with the other side?
- If so, shall we tell the Tribunal about this agreement so we might get an earlier listing?
My impression is that for this to work it is going to have to be led by the lawyers. The ETs are under resourced and are not in a position to enter into extensive correspondence and diary management. But, if an application is made, where all the issues re. listing have been resolved, where the Tribunal has been provided with available dates with that application, then maybe, just maybe, the otherwise unfillable hole in the Tribunal diary may provide the perfect slot for an additional case to be heard.
Oh, and finally, did I mention that I delivered a 30-slide, 45-minute, carefully crafted seminar on vulnerable parties and the only questions I received were about two throwaway slides in my introductory remarks? Not bitter at all…
Head of Albion Chambers’ Employment and Professional Disciplinary Team