UK Employment Law Coffee Break | Observation of tribunal hearings, augmented and virtual reality at work and our latest GDPR for HR newsletter

Remote observation of tribunal hearings

Covid-19 saw tribunal hearings move to remote platforms; building on these new ways of accessing the tribunal system, a roadmap for 2021/22 was published by the Presidents of Employment Tribunals (England and Wales, and Scotland) and which highlighted that while "in general terms, justice is best experienced in a face-to-face environment", in respect of some of the innovations made during Covid-19 "we should not turn back".

As a default many claims now continue to be managed at the preliminary stages by way of telephone or video hearings and depending on the type and complexity of claim, the same applies to some final and appeal hearings.

Guidance on observing remotely

Since June 2022, new powers have existed to allow reporters and other members of the public to observe hearings remotely. Practice guidance for all courts and tribunals was published back in June 2022 by the Lord Chief Justice and the Senior President of Tribunals. The Employment Appeals Tribunal (EAT) has now issued its own further guidance providing more detail on matters such as when applications to observe remotely must be made. For example, while generally applications to observe an EAT hearing remotely should be made as soon as possible, and in any event, by no later than 4pm on the Friday before the hearing is due to take place, where the exact date is not known, an application can still be made in anticipation of the hearing date being fixed.

In order to grant an application, three criteria must be met:

• it must be in the interests of justice;
• there must be capacity and technological capability to enable transmission; and
• remote observation will not create an unreasonable administrative burden.

It is recognised that "remote observers may be more likely than someone watching in a court room to breach a reporting restriction or the ban on filming or photography or to engage in witness intimidation. They may be harder to observe, identify and hold to account if they do" and that "for observers outside the jurisdiction these risks may be greater".

When assessing whether remote access would be in the interests of justice, the existence of specific risks should be considered and reflected in any directions made. For example, express reference is made to the regard which should be had to any issues that might flow from observation by people outside the UK.

Another example provided is of a witness who may be more reluctant to give evidence in front of unknown observers and which could also impact the quality of the evidence given; this is to some extent addressed by the fact that the applicants must disclose their identity to the court and the tribunal will consider it in all the circumstances to ensure that the administration of justice is carried out.

Standard directions given for those attending remotely include requirements to mute microphones and turn off cameras when asked to do so, not to interrupt proceedings and to follow any judicial instructions. Recording or transmission of hearings is forbidden and those in breach will be in contempt of court. Remote observers are required to provide written agreement to the directions. Any derogations from open justice also apply equally to remote observers; for instance where public access is restricted to aspects of the evidence or there is a reporting restriction in place.

Addressing concerns

For many employers, the public nature of hearings has always been a potential concern with the general rule being that reporters and members of the public are able to attend a court room to listen to proceedings.

However, the concern with remote observation is that individuals would not be held to the same standards of conduct and could for example be covertly recording proceedings, observing in groups or observing anonymously.

These issues are directly addressed in the relevant guidance and the stages involved in being granted the right to observe remotely will in most cases prevent individuals doing so out of curiosity. In fact, remote observation should make proceedings more accessible, particularly for those with disabilities who are unable to travel and for other individuals who need to minimise time off work and travel costs in attending.

Those acting in breach of the guidance could find themselves in contempt of court and therefore should not disregard the requirements for remote observation lightly.

Increasing digitalisation

This is another example of increasing digitalisation of tribunal proceedings, and as we covered in an earlier Coffee Break in 2022, we saw the introduction of new Presidential guidance from the Employment Tribunals dealing with parties taking oral evidence by video or telephone from an individual based abroad.

If you need assistance with understanding tribunal process or wish to discuss any claims, please do contact Phillip Chivers, Legal Director, who leads our Employment Tribunal Management Service.

What risks can augmented and virtual reality introduce into the employment life cycle?

Augmented reality (VR) and virtual reality (AR) are rapidly becoming integral tools in the modern workplace. As AR and VR technologies, known as immersive technologies, continue to evolve and gain more widespread adoption, businesses should be aware of the legal and regulatory risks that need to be managed. In our Insight we look at their impact on the employment lifecycle.

Our GDPR for HR newsletter – March 2023

In our latest GDPR for HR newsletter we look at the latest guidance from the Information Commissioner's Office on handling workers' health data, WhatsApp and data subject access requests, and an update on UK data protection reform. You can also sign up to our "Dipping into Data" series, which consists of monthly 30 minute webinars on legal, regulatory and commercial considerations around the use of data (whether personal or otherwise), including data privacy, other data regulation, intellectual property, competition and contract issues.

Our next webinar of the series is "A focus on health data" on Monday 27 March 2023. Find more information and a link to register for the webinar.

If you would like to sign up to the newsletter directly, please contact your usual Osborne Clarke contact or Olivia Sinfield who leads our GDPR for HR team.