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posted 2 years ago


Judge Clarke



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Judge Clarke
The Employment Lawyers Association (ELA)

The Covid-19 pandemic and subsequent restrictions have made it difficult for the Employment Tribunals across Great Britain to respond swiftly to enquiries by email and telephone. What follows are some example FAQs received by the ELA.

“I was given a date for a hearing that required me to attend a tribunal office. It has been postponed and converted to a preliminary hearing by telephone, to discuss ‘case management’. I disagree with this. Can the hearing continue as before?”


No, it cannot. Please see the Guidance issued by the Presidents of the Employment Tribunals in England and Wales and in Scotland, in response to the Covid-19 pandemic: https://www.judiciary.uk/wp-content/uploads/2015/03/Presidential-Guidance-ETCovid19.pdf


Please also see the updated and amended Direction issued by the Presidents at this link: https://www.judiciary.uk/wp-content/uploads/2013/08/ET-Covid-19-DirectionAmendment-23.3.20.doc. The Direction was reviewed on 29 May 2020 in the terms confirmed here: https://www.judiciary.uk/publications/employment-rules-andlegislation-practice-directions.


Unless a judge has directed otherwise, it will not be possible to have a hearing in person (requiring you to come to a tribunal office) if it had been due to start on any date between 23 March 2020 and 26 June 2020.


“In my case, the hearing was due to start after 26 June 2020. Will it also be postponed and converted to a preliminary hearing by telephone?”


If your case has not been postponed yet, it may still be able to proceed as planned. It is recognised that the personal circumstances of a party or witness, or their family members, may mean that you need an answer as soon as possible about what is to happen in your case. For example, it may be difficult or impossible for you to prepare for a hearing listed to take place in the next few months, because of illness, self-isolation or social distancing. If that is so, please write to the tribunal to explain this.


“In my case, the tribunal had previously made various orders and directions. They related to ‘case management’ matters such as exchanging documents. Those orders and directions had deadlines, requiring me to do things by a date between 23 March 2020 and 26 June 2020. Must I still comply with those orders and directions?”


If that hearing was due to take place between 23 March 2020 and 26 June 2020, the answer to this question is no. This means that any orders and directions made prior to 23 March 2020, applying to hearings in that window, have been suspended. It also means that you can ‘stand down’ your proposed witnesses. The question of whether those orders and directions should be reactivated, or whether new orders and directions should be made with different deadlines, will be considered soon; the intention is for them to be considered at the preliminary hearing by telephone into which that hearing has been converted. It is appreciated that some parties may disagree with this approach. For example, they may want those orders complied with, so that the preliminary hearing is more productive. That is understandable. The problem is that compliance may put pressure on parties to undertake tasks that contravene the guidelines on social distancing, such as speaking to witnesses, and which operate differently in England, Scotland and Wales. Not everyone has access to technology to enable this to be done electronically. Instead, the parties will discuss the best approach with the judge at the preliminary hearing by telephone.


If your hearing is due to start after 26 June 2020, the answer is a qualified yes. As matters stand at the date of this third edition, those hearings are still going ahead. The second half of the calendar year has been split into three periods: July/August; September/October; and November/December. In these periods, different approaches will be taken as the Employment Tribunals rebuild their capacity to conduct in-person hearings, video hearings and combinations of the two. This approach is likely to differ between parts of Great Britain (and regions within England) because staff numbers remain variable.


Can my case simply be paused until the pandemic has passed?


A pause of proceedings is known as a ‘stay’ in England and Wales and as a ‘sist’ in Scotland. It may or may not be appropriate to take such a step in your case. It will depend upon the circumstances and the application of the overriding objective, which is to deal with cases fairly and justly. In some cases, a judge will agree that fairness and justice require such a pause; in other cases, the judge will consider that it is not fair or just to pause the case. The issue is best discussed at the preliminary hearing by telephone, where both parties’ views can be considered.


My case has been converted to a preliminary hearing by telephone in accordance with the Presidential Guidance. How should I prepare?


If your case had been allocated dates for a hearing requiring you to attend a tribunal office, and has now been converted to a preliminary hearing by telephone, the discussion with the judge is likely to cover the following points:

  • It will be an opportunity to ‘take stock’ with the parties – in other words, to see where you are currently and what preparatory steps still need to be taken;
  • It will enable the judge to give the parties some understanding of the current pressures that the pandemic is placing on the Employment Tribunal system, and to provide as much certainty as possible about the future progress of the case;
  • It will enable the judge to investigate with the parties how the Presidential Guidance can be applied to move the case forward;
  • The judge can investigate whether the issues in the case can be clarified and/or whether a judgment can be issued, with agreed wording, to dispose of at least some of the areas of dispute; and
  • The judge can investigate the parties’ appetite for alternative dispute resolution (‘ADR’), such as judicial mediation.


It would therefore be helpful if you could do the following:

  • Before the preliminary hearing by telephone, read the Presidential Guidance on the pandemic. This will help you to be ready for a discussion with the judge about how it might be possible to move the case forward.
  • Before the preliminary hearing by telephone, consider whether you have the equipment needed to conduct a video hearing at a later stage.
  • Join the preliminary hearing by telephone ready to discuss any pressing reasons (such as poor health or travelling from overseas) why your case should be prioritised over other cases in the system. You will not be expected to have any special equipment or software for the preliminary hearing by telephone, which will be organised by the tribunal office handling your case.


My hearing has been cancelled due to the pandemic. When will it be rearranged? Will my case just go to the back of the queue?


It is the sincere hope of the Presidents that cases can be rearranged as quickly as possible. Unfortunately, they cannot say with certainty when that will be. It depends on the type of case. It also depends on when the public safety consequences of the pandemic are lifted. The Presidents will continue to review the situation at regular intervals.


I have a judicial mediation arranged before 26 June 2020. Will it go ahead?


We very much hope that it will go ahead. However, instead of holding the mediation at a tribunal office, it would be held by telephone or using video technology. The tribunal will aim to contact the parties in advance to consider the appropriate arrangements. If you are represented during a judicial mediation conducted by telephone or video, you are not required to be present in the same room as your representatives during the process. You should still observe social distancing.


I am supposed to be attending a hearing, or a preliminary hearing by telephone or video, within the next few days. I don’t think I am well enough to attend. What should I do?


You should send an email to the tribunal office. Please mark your email as ‘urgent’, by putting that word in the subject field, and copy it to the other side. The subject field should also include your case number and the names of the parties. In your email, you should explain your situation and why you want the hearing rearranged for a later date. If you have any medical evidence to support your position, please attach it to your email. The Presidents recognise that, with the current pressures on the National Health Service and GP surgeries, it may not be possible to obtain this sort of evidence quickly. In that case, do not delay; please send your email to the tribunal with as much information as you can currently provide.


Source: https://www.judiciary.uk/wp-content/uploads/2020/06/FAQ-edition-date-1-June-2020.pdf

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