“The future will involve more, not less, use of technology. We wish technology to be the servant of justice, not its master.”

Confirming speculation that we may be looking at virtual tribunal hearings for some time to come, the Employment Tribunals (Scotland) “road map” makes clear that the majority of hearings will continue to be conducted remotely in 2021/22.

With that in mind, and having attended a few remote hearings recently, I thought I would set out some of my own personal ‘top tips’ for employers in navigating virtual tribunal hearings.

First of all, it is important to ensure that witnesses have an appropriate set up, either at home or in a quiet room alone in the office, where they will not be interrupted. They will be asked by the Judge to confirm that they are on their own. Given the varying degrees of peace and quiet in each individual’s home, it is worth exploring the possibility of a room or office in your building where witnesses can be set up to give their evidence. The same goes for anyone attending in either an advisory capacity or simply as an observer. Whilst in most cases, the instructing principal (i.e. person from the Company giving instructions to the legal team) and any observers will be directed to turn their microphone and camera off, in the event that they are required to appear on camera, they should still be in a quiet room on their own, free from interruptions.

It is also vitally important to ensure that all witnesses are set up for a test using the Tribunal’s Cloud Video Platform (“CVP”) technology in advance of the hearing (or indeed whatever replacement technology the Tribunals intend to introduce). The arrangements for this test will ordinarily be made through your legal representative. It is in any event worth ensuring that each witness makes the time to carry out this test, in order to avoid any delays on the day of the hearing.

That being said, the best laid plans may still come undone at the hands of unreliable technology. Hearings can come to a halt when, despite earlier CVP tests, a participant’s home wifi or personal device just does not allow them to participate effectively in proceedings. Certain Employment Tribunals may be able to come to the rescue and set them up in the Tribunal venue using a suitable device. It is therefore worth bearing in mind that if you are concerned about a witness’s internet connection and/or access to a suitable device, the Tribunals (in Scotland certainly) do have some capacity to ‘host’ a limited number of individuals in ET venues with suitable devices. It is best to identify any such issues as early as possible so that your representative can make appropriate enquiries.

It is the legal representative who receives the details of the CVP hearing link and passcode, and will forward that on to any witnesses and other attendees (and remember that the test link will be different from the actual hearing link!). Once the link has been received, it is worth all parties logging into the CVP link early to avoid delays and to ensure that if any last minute issues arise with the link there is time to call the Tribunal to resolve this prior to the start of the hearing.

Support for witnesses on the day from either HR or other employer representatives is often greatly appreciated by witnesses who may feel the added pressure of attending remotely from home or the office. Whilst it is likely that any instructing principal or observer will have their camera turned off, it can be comforting for a witness to know at least that someone else is experiencing the process alongside them.

In terms of communicating with your legal representative during the hearing, there will still be opportunities to do so in the way that would normally happen in person. For example, the Tribunal will allow you time to switch your camera and microphone off in order take/receive instructions. Another useful method is WhatsApp. In any event, make sure you have whatever line of communication you intend to use set up in advance of the hearing and that witnesses are kept updated on when they are likely to be expected to give their evidence (your representative is likely to do this, however if you are intending on attending as an observer, you may be able to communicate with witnesses much quicker). By doing so, you will be better placed to advise the Tribunal whether and when the witness will be available (and if, for example, they are currently off for a covid test, as recently happened during one of my hearings …). As witnesses will not be physically at the Tribunal building, they may not be as immediately available as usual and evidence that can be expected to take all afternoon may last only half an hour, so it is worth caveating expected time frames with a need to remain on standby in case evidence is quicker or longer than expected. And just as a gentle reminder, if witnesses are at the office in separate rooms, do ensure they do not interact with each other (or anyone else) during any breaks in their evidence.

Finally, it is important that you ensure that each of your witnesses a) have access to the bundle and their statement (where statements are being used in place of examination-in-chief), and b) that they have been directed not to make any notes on them. The Employment Judge will ask that the documents the witness has in front them are clean and unmarked. It is a minor detail and one easily forgotten when witnesses may be dotted about the country as opposed to using a dedicated witness bundle in the Tribunal. But it is definitely one worth remembering given the delays that may ensue if you then have to send out fresh hard copy documents once the hearing has already commenced.

There are always going to be ups and downs where technology is involved and it is clear from the Tribunal’s own road map that feedback from users has been mixed and often diametrically opposed in terms of the desire for continued use of remote technology. However, in the current world that we live in and the unprecedented backlog in cases faced by the Tribunal system, it is clear that virtual hearings are here to stay at least for the time being, and so the more prepared we all are, the smoother (hopefully) proceedings will be.