Presidential Guidance - The Industrial Tribunals and The Fair Employment Tribunal (June 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, 24 February 2021 and 2 April 2021 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, namely that everyone is entitled to a fair and public hearing within a reasonable time, 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 on a limited basis.

5. 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. The President’s aim remains the increase in the disposal of business, as rapidly as is consistent with the Public Health guidelines and the Risk Assessments in respect of the Tribunals’ building (Killymeal House) and Adelaide House.

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

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 on a limited basis.

5. 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. The President’s aim remains the increase in the disposal of business, as rapidly as is consistent with the Public Health guidelines and the Risk Assessments in respect of the Tribunals’ building (Killymeal House) and Adelaide House.

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

Updated Information and Presidential Direction

The tribunals’ building - Killymeal House

7. Killymeal House was reopened following the completion of an updated Risk Assessment by the Department for the Economy. The public should only attend on prior arrangement with the Secretary or at the direction of an Employment Judge.

8. The Risk Assessment for Killymeal House states that in person hearings cannot take place there at this time. However, this will be kept under review. Video conferencing equipment has been installed in Killymeal House. Hearings which had been listed to take place as in person hearings in Killymeal House will now take place there using the video conferencing equipment, subject to paragraph 11 below.

9. Claimants or respondents may participate in hearings either from remote locations using their own equipment or from adjacent hearing rooms in Killymeal House, subject to the occupancy and safety constraints set out in the Risk Assessment. At the current time the maximum occupancy of the rooms which are available to parties is three persons in each room. This will also be kept under review.

10. The appropriate format for a hearing and the listing of it remains a judicial decision, taken in the light of Article 6 and the tribunal’s overriding objective.

Adelaide House

11. The Department for the Economy has also provided two hearing rooms in Adelaide House for in person hearings until at least Friday 1 October 2021. The Department has agreed to provide additional hearing rooms for the tribunal, if required, if Adelaide House ceases to be available to the tribunals. A Risk Assessment for Adelaide House has also been completed and the hearings in Adelaide House are subject to the constraints of that Risk Assessment.

12.The two additional hearing rooms in Adelaide House will be used for conducting hearings which are, in the opinion of an Employment Judge, not suitable for hearings using video conferencing.

13. Parties and their representatives should note that there are no facilities to allow hearings to be conducted on a hybrid basis in Adelaide House.

14. The appropriate format for a hearing and the listing of it remains a judicial decision, taken in the light of Article 6 and the tribunal’s overriding objective.

Urgent Hearings

15. Applications for interim relief are required by to be determined as soon as practicable after receiving the application[1].  Any such application must satisfy the requirements of the legislation[2], be clearly set out in the claim form presented by the claimant and should be separately drawn to the attention of the tribunal by the claimant in covering correspondence.

Expedited Hearings

16. There may be other cases where, on the tribunal’s own initiative or on the application of a party, the tribunal is satisfied, having regard to:

 (i) The need to ensure compliance with Article 6 of the European Convention on Human Rights; and

(ii) the need to ensure that the overriding objective is achieved;

an expedited hearing is required. Where a party or parties consider that an expedited hearing is required, they should make an application in writing to the tribunal 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).

It is not possible to provide an exhaustive list of relevant circumstances that would support an application for an expedited hearing but they would include:

(i) previous postponements and consequent delay;

(ii) the physical or mental health of a party or witness;

(iii) financial difficulty of a party;

(iv) statutory appeals against prohibition notices, where for example a business has been or could be forced to close pending determination of the appeal by the tribunal; and

(v) the need to secure the availability of a relevant witness where that availability is limited.

The decision whether or not to expedite a hearing is a judicial one.

Case Management Preliminary Hearings

17. Case Management Preliminary Hearings will continue to be conducted to prepare and list cases for hearing, having due regard to the overriding objective, by WebEx/telephone. However, there may be occasions when they will be conducted in person, for example, where there is a requirement for reasonable adjustments/special arrangements or where complex interlocutory applications involving multiple documents need to be considered and/or determined.

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

Open Justice

19. The Coronavirus Act 2020 has made provision to enable the public to see and hear proceedings which are conducted wholly as video hearings and wholly as audio proceedings, where directed by a tribunal.

20. Rules 38 states:

Inspection of witness statements

38. Subject to rules 44 (privacy and restrictions on disclosure) and 91 and 92 (national security), any witness statement which stands as evidence in chief shall be available for inspection during the course of the hearing by members of the public attending the hearing unless the tribunal decides that all or any part of the statement is not to be admitted as evidence, in which case the statement or that part shall not be available for inspection.

 Rule 40 States:

Electronic communication

40: A hearing may be conducted, in whole or in part, by use of electronic communication (including by telephone) provided that the tribunal considers that it would be just and equitable to do so and provided that 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.

Rule 38 provides for inspection of a witness statement. However, it does not provide for copies to be taken.

21. The weekly hearing schedule is published on the tribunals’ website. Subject to any orders made under Rule 44 (Privacy) or Rules 91 and 92 (National Security Proceedings), arrangements to facilitate public viewing (including by the press) of any hearing listed on the weekly hearing schedule can be made by contacting the Secretary to the Tribunals.

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, by publishing the weekly schedule of hearings on the tribunals’ website and providing the option of personal or, where appropriate, remote attendance.

(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. Subject to any order made by the tribunal on an application by a party, no one is permitted to make any video or audio or other recording or image whatsoever of any part of the proceedings. This prohibition includes a ‘screenshot’ or ‘screen grab’ and all like related mechanisms.

24. A hearing must not be recorded, whether it is held fully or partially remotely (i.e. on a hybrid basis) or in person, without the permission of the tribunal. To do so without permission is a criminal offence.[3]