Presidential Guidance - The Industrial Tribunals and The Fair Employment Tribunal (April 2021)

THE INDUSTRIAL TRIBUNALS AND THE FAIR EMPLOYMENT TRIBUNAL

PRESIDENTIAL DIRECTION ISSUED UNDER REGULATION 14 OF THE INDUSTRIAL TRIBUNALS AND FAIR EMPLOYMENT TRIBUNAL (CONSTITUTION AND RULES OF PROCEDURE) REGULATIONS (NORTHERN IRELAND) 2020 AND PRESIDENTIAL GUIDANCE ISSUED UNDER RULE 8 OF THE INDUSTRIAL TRIBUNALS AND FAIR EMPLOYMENT TRIBUNAL RULES OF PROCEDURE 2020

Further to the Presidential Guidance dated 20 March 2020, 27 March 2020, 11 June 2020, 7 July 2020, 20 January 2021, 4 February 2021 and 24 February 2021 and having regard to:- 

1. Public Health Guidance and the continued need to limit the scope of any risks to health during the Coronavirus (Covid-19) pandemic; 

2. the need to maintain the administration of justice and, in particular, the need to address the growing backlog of claims awaiting determination; and 

3. the need to secure full compliance with both Article 6 of the European Convention on Human Rights and the overriding objective to deal with cases fairly and justly, which includes so far as practicable:-

(a) ensuring that the parties are on an equal footing;

(b) dealing with cases in ways which are proportionate to the complexity and importance of the issues;

(c) avoiding unnecessary formality and seeking flexibility in the proceedings;

(d) avoiding delay, so far as compatible with proper consideration of the issues;

(e) saving expense; and

(f) the requirement for parties and their representatives to assist the tribunal to further the overriding objective and in particular to co-operate generally with each other and with the tribunal;

the President provides the following background information, makes the following direction and issues the following updated guidance.

Background Information

4. Following the closure of the Tribunals’ building, by the Department for the Economy, on 19 January 2021, the Tribunals’ building was reopened on 2 March 2021 for the following limited purposes:

(a) for lodging hard copy paper bundles for hearings by prior arrangement with the Tribunals’ Secretariat; and

(b) for staff and the Judiciary to carry out their administrative and judicial functions, which require access to hard copy files and records.

5.  The tribunals’ building remains closed to the public pending the completion of the updated Risk Assessment by the Department for the Economy.

Updated Information

6. The President and, in her absence, the Vice President of the Industrial Tribunals and Fair Employment Tribunal, is responsible for using the resources available to secure, so far as practicable, the speedy and efficient disposal of proceedings; to determine the allocation of proceedings between tribunals; and determine where and when tribunals shall sit.

7. The President’s aim has been to gradually increase the disposal of business, whilst adhering to Public Health guidelines and the Risk Assessment (which is currently being updated by the Department for the Economy) in respect of the Tribunals’ building.

8. The President continues to engage with the Department in relation to her plan for increased disposal of business, subject to the updated Risk Assessment and the constraints of the resources which are currently available to her.

The Tribunals’ Building (Killymeal House)

9. A draft updated Risk Assessment for the Tribunals’ building has been prepared, to take account of the revised Public Health Agency advice to the Department. It has not yet been finalised. The Department has also commissioned a Ventilation Report on the Tribunals’ building.

10. The Department has confirmed to the President that, given the current restrictions required to tackle the spread of Covid-19, face-to-face (in person) hearings will not be able to be resumed in the Tribunals’ building, at this time. However, this will be kept under review.

11. Some Video conferencing equipment has been installed to allow for fully remote and/or hybrid final hearings (where cross examination of witnesses is required) to take place from the Tribunals’ building and has been trialled successfully. Further equipment has been ordered by the Department to facilitate additional hearings.

12. As face-to-face (in person) hearings will not be able to be resumed in the Tribunals’ building at the present time, Final Hearings and Preliminary Hearings where oral evidence is required and which have been listed to take place as face to face in person hearings in the Tribunals’ building (Killymeal House) will not be able to proceed, at this time, on a face to face in person basis.

13. Final Hearings and Preliminary Hearings where oral evidence is required to be given can still take place fully remotely using WebEx. Such Hearings may be conducted by the panel from a remote location or from the Tribunals’ building.

14. Where claimants or respondents do not have the necessary equipment or suitable personal access to the internet required to participate remotely, alternative arrangements will be made by the Department.

Additional Hearing Rooms in Adelaide House

15. The Department has agreed to provide additional Hearing Rooms in Adelaide House, 39-49 Adelaide Street Belfast BT2 8FD, to allow, where required, fully in person hearings to take place, subject to the completion of a Risk Assessment. These rooms will be used for conducting cases which are, in the opinion of an Employment Judge, unsuitable for being conducted remotely.

Resources

16. The Department has provided a commitment to the President to keep the staffing complement at the Tribunals under review and, if required, to consider increasing the staffing complement, in order to support the President in increasing the disposal of business.

Presidential Direction

17. In light of the updated information provided above, Review Case Management Preliminary Hearings will be arranged in all cases that had been listed and postponed following the closure of the Tribunals’ building on 19 January 2021, to determine whether:- 

(a) those hearings can proceed by electronic means; or

(b) those hearings should proceed as in person hearings;

and to relist them, having due regard to the overriding objective, the views of the parties and the following:-

(a) whether the claim is contested; and

(b) if the claim is contested:-

(i) the complexity and the number of legal issues to be determined;

(ii) whether it can be determined by legal submissions only; 

(iii) the number and nature of any factual disputes between the parties;

(iv) the extent to which oral evidence will be required;

(v) the number of witnesses who will be called;

(vi)  the circumstances of parties and witnesses, including whether reasonable adjustments/special arrangements are necessary to ensure their effective participation 

(vii)the volume of documents to which the Tribunal will be referred; and

(viii) the date when the claim was presented. 

The appropriate format for a hearing remains a judicial decision, taken in the light of the tribunal’s overriding objective.

18. In other cases where Progress Review Preliminary Hearings have been listed, the arrangements for the Final Hearing, namely whether the hearing will proceed as a face to face in person hearing or by electronic means (hybrid or fully remote), will be confirmed at the Progress Review Preliminary Hearing. The appropriate format for a hearing remains a judicial decision, taken in the light of the tribunal’s overriding objective.

19. Once the Review Case Management Preliminary Hearings referred to at paragraph 17 above have been completed, Case Management Preliminary Hearings will be held to prepare and list all other cases for hearing, within the constraints of the resources available, to take place as a face to face in person hearing or by electronic means (hybrid or fully remote). The appropriate format for a hearing remains a judicial decision, taken in the light of the tribunal’s overriding objective.

20. Where a party considers a case to be urgent, it is possible for that party to write to the Tribunals’ office to explain why they consider the matter to be urgent and to request an expedited hearing. Urgent Cases include:

(a) applications for interim relief;

(b) statutory appeals against prohibition notices; and

(c) other cases where a party or parties consider that an urgent hearing is required, and at the same time provide the reasons for the application, together with the comments of the other party or parties (where the application is being made by just one party), and the Employment Judge is satisfied, having regard to those reasons and the overriding objective, that an urgent hearing is required.

21. Preliminary Case Management Hearings will continue to be conducted by electronic means (WebEx/telephone), subject to the requirement for reasonable adjustments/special arrangements.

Overarching Principles for Remote Hearings by Electronic Means 

22. (a) Every remote hearing will be planned and conducted in a manner designed to secure every party’s right to a fair hearing.

(b) The planning and conduct of every remote hearing will replicate, in so far as possible and with all modifications deemed appropriate by the tribunal, the conventional form of hearing in the tribunal.

(c) The duties owed to the tribunal by every party, legal representative and other participants will apply fully in the planning and conduct of every remote hearing.

(d) Every remote location attended by the participants in a remote hearing forms part and is an extension of the tribunal. All participants must conduct themselves accordingly.

(e) Scrupulous compliance with all regulatory and procedural requirements, all provisions of this Presidential Guidance, all pre-hearing case management orders and all directions of the tribunal is essential.

(f) The overriding objective in Rule 2 of the Industrial Tribunals and Fair Employment Tribunal Rules of Procedure 2020 applies to the planning and conduct of every remote hearing.

(g) The ability of the tribunal to give full effect to the overriding objective may sometimes be somewhat impaired having regard to factors, including but not limited to,human, logistical, connectivity, technological support and facilities. This does not detract from the overarching principle at (a) above.

(h) The tribunal will take reasonable steps to ensure that the hearing is of an open and public character, including, by seeking to give notice to the media and providing the option of personal or remote attendance. Arrangements to facilitate public viewing (including by the press) can be made, if required, by contacting the Secretary to the Tribunals.

(i) The Industrial Tribunals and Fair Employment Tribunal Rules of Procedure 2020 apply to every remote hearing.

Important Notice

23. In the tribunal the only permanent recording of the proceedings will be that made by the tribunal. Thus no one is permitted to make any video or audio or other recording or image whatsoever of any part of the proceedings. This absolute prohibition includes a ‘screenshot’ or ‘screen grab’ and all like related mechanisms.

24. Any violation of the foregoing absolute prohibition is likely to be considered a contempt of court.

This Guidance will be subject to ongoing review.

Eileen McBride CBE

President

2 April 2021