Since the introduction of the 2013 Rules of Procedure I have found that employment tribunals are more prepared to conduct hearings by electronic communication; in particular by telephone. This extends not just to case management (for which telephone hearings have always been a frequent occurrence) but also to the determination of preliminary issues. There have been several occasions in the past 12 months where I have had to give detailed legal submissions over the telephone with nothing but the handset to keep me company.
The extended use of telephone hearings makes perfect sense from the perspective of the overriding objective: they are expeditious, informal, avoid delay and save the parties the expense of travel to the tribunal. Of course, they remain inappropriate in almost all cases where one party is representing themselves and this is the one situation where the tribunal continues to be reluctant to list a telephone hearing.
My own recent experiences have shown that telephone hearings have their own particular quirks of which every practitioner in the employment tribunal should be aware.
The first concerns where the employment judge is physically situated. Some employment judges tend to conduct preliminary hearings from their private office as a matter of routine. This is fine where the hearing concerns purely case management. However, where a preliminary issue is being decided, the hearing has to be conducted in public in most instances (rule 56). I had the rather odd scenario of a telephone hearing being temporarily suspended so that the employment judge could relocate himself from his office into open tribunal.
There are then the requirements of rule 46, which touches on the conduct of telephone hearings. It states that a hearing will only be conducted by electronic communication where “the parties and members of the public attending the hearing are able to hear what the tribunal hears and see any witness as seen by the tribunal”. So, not only does the employment judge have to be in open tribunal, he or she has to ensure that the parties are on speakerphone so that anyone attending the tribunal can hear what they say.
This may all seem like hair-splitting, but in light of the judgment of the Court of Appeal in Storer v British Gas plc [2000] IRLR 495 the requirement for open justice is fundamental and cannot be circumvented.
The second quirk concerns the exchange of information between the parties where detailed legal argument is going to be made at the hearing. I conducted a telephone preliminary hearing at which the parties had to address the knotty legal issue of how an admitted objection to a transfer under regulation 4(7) of TUPE 2006 impacted upon the ability to bring claims against the transferee employer, whom I was representing. The authorities were in favour of the argument I was instructed to make and they were served on the other parties and the tribunal, via my solicitor, in advance of the hearing. However, during the hearing, the claimant’s representative indicated that there was an EAT judgment which contradicted my argument but he had not provided a copy either to my instructing solicitor or the tribunal in advance.
This highlighted one of the practical difficulties of telephone hearings: they do not easily allow for the ad hoc exchange of documentary information between the parties and the tribunal. If this were a hearing conducted in person, exchanging authorities would be a simple matter of knocking on the door of the other side’s waiting room. Alternatively, if a legal point arose unexpectedly during the course of the hearing, the employment judge would stand the hearing down for a short time for everyone to conduct their own research. However, with a telephone hearing, there is very little opportunity to suspend a hearing temporarily. The parties and the tribunal tend to get only one shot at it.
In my case, the net result of the claimant’s representative referring to an authority at a late stage was that the issue had to be put off for a further preliminary hearing, causing greater expense to all sides, as neither the employment judge nor I had had a reasonable opportunity to consider the judgment. It also resulted in a costs warning being sent to the claimant’s representative as firstly, the authority referred to proved not to be supportive of their position and, secondly, it ought to have been sent to us in advance of the hearing. The claimant promptly conceded the point.
The lesson to be learned is that if you want to refer to a document as part of a telephone hearing, it is vitally important that you ensure that all other parties and the tribunal have been served with a copy in advance. This extends to all forms of document, including case management agendas, authorities and documents in the case.
