The Presidents of Employment Tribunals for England and Wales and Scotland have issued joint Presidential Guidance in connection with the conduct of employment tribunal proceedings during the unprecedented circumstances of the COVID-19 pandemic. They note that employment tribunals 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 to deal with cases fairly and justly, and that parties and their representatives are required to cooperate with one another and assist the tribunal.
Among other things, the Guidance draws attention to rule 46 of the Tribunal Rules contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237. This 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. The Presidents strongly encourage tribunals and parties to use electronic communication methods to conduct hearings of all kinds where this is both feasible and compatible with the overriding objective. They note that 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.
Also highlighted are the provisions in S.4 of the Employment Tribunals Act 1996 which allow tribunal claims which would ordinarily be heard by a panel of three to be heard by an employment judge sitting with one lay member or an employment judge sitting alone. The Presidents note that the consent of the parties is always required under these provisions, but suggest that employment judges should bear them in mind and take the opportunity to explore with parties, in appropriate cases, whether such consent may be forthcoming in circumstances where it has not been possible to constitute a full tribunal for Covid-19 related reasons.
The Guidance has effect from 18 March 2020.
Link to Guidance: https://www.judiciary.uk/wp-content/uploads/2015/03/Presidential-Guidance-ET-Covid19.pdf