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Telephone Hearings: Pitfalls and preparation

Daniel Northall writes
for PLC in a new regular feature, A practical view from the tribunal, in
which members of Littleton share practical guidance from their recent
experiences in the employment tribunal.This article was originally published by Practical Law.

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 self-represented 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 (see Rule 56 and its reference to Rule 53(1)(b) and (c)). 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

There are then the requirements of Rule 46,
which touches upon 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 the parties 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 impacted upon the ability to bring
claims against the transferee employer, who I represented.

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.

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 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 a reasonable
opportunity to consider the judgment. It also resulted in a costs warning being
sent to the Claimant’s representative as (a) the authority referred to proved
not to be supportive of their position and (b) 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.

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