This article considers the practicalities of using such a system, the legal issues which may arise and asks whether this is the way forward for future hearings or something to be used in more limited circumstances once physical distancing is no longer required.
Using the System
I have had the benefit of using the CVP at a judicial mediation.
These are a few comments and observations which arise from that experience:-
- Google Chrome must be used as the web browser, otherwise the CVP will not work.
- You must provide the Tribunal with the contact details of the participants well in advance of the hearing.
- A test run a day or two before the hearing takes place which is very useful. For example, it highlighted the fact that our client's use of a different web browser which their IT team thought would work was not compatible.
- The logging in process was very straight forward and no one had difficulty on the morning of the hearing in doing so.
- The clerks are very helpful and knowledgeable. They do "leave the room" during the hearing so you do require to phone them to re-enter and help out if experiencing technical issues during the hearing itself.
- The CVP is only as good as the participant's Wi-Fi capability. I personally found the audio very good but unfortunately the video froze on a few occasions and would not unfreeze unless I logged in and out. Whilst this was not fatal to the judicial mediation process, it would not be appropriate to continue with a cross-examination of a witness when experiencing a frozen screen. Clearly the use of the system for this purpose is in its infancy and there will no doubt be technological issues that will have to be addressed.
- The Judicial Mediation facility involved two separate virtual "rooms" for the Claimant and the Respondent. The Employment Judge could switch between the two for a private discussion with one party. The Judge was also able to bring the parties into one virtual room for a joint discussion. This worked very well.
- It is easy to tell who is in the room and who is not which is important when considering when private discussions can and cannot take place.
- The chat room function is best utilised to tell others when you are having technical difficulties, but avoid discussing the case on it,
- If you are not speaking, put yourself on mute to improve the audio function, but you will probably forget to take yourself off mute, at least once, if you have not used such a system.
- The two people who appear on the screen are the last two people to have spoken. This will be useful in a cross-examination context.
- There is a document sharing function on the CVP. However, this is not being utilised so that electronic bundles can be exclusively used as part of the CVP process. The view expressed by Judges is that this would create an additional level of complication at present. It is likely that Judges will continue to order hardcopy bundles to be sent, although parties can agree that electronic bundles may be used, but not as an integrated part of the CVP system.
- Feedback suggests that it is more mentally demanding using a CVP system to conduct a hearing. That might partly be due to its relative novelty. Additional breaks will be put in place.
The Legal Issues
Video technology is not, of course, entirely new to the Employment Tribunal system. It is often used as a special measure for witnesses. It is perhaps illustrative when looking at the potential legal issues which may arise in using the CVP to look at the common objections parties raise when an application to allow witnesses to give their evidence by video link is made.
The principal objection is that it can be difficult to assess the witness's credibility and reliability when viewing them via video. In my view, the argument that you cannot assess the witness's demeanour via video link is often overdone and there is not too much lost when evidence is given by video link. The issue may however be exacerbated when everyone is talking and observing remotely and not just the witness.
Another objection is that it is far more difficult to ensure that the witness is not looking at prepared notes whilst giving their evidence that no one else has sight of. The Tribunal has indicated that strong guidance will be given to witnesses only to have regards to the joint bundle and their witness statement (if one is ordered to be given) and hopefully this will be sufficient.
The aspect of human interactions that talking via video conferencing is artificial and stilted may affect the persuasive force of a cross examination. However, all parties will be at a similar disadvantage, if one exists, and we have all become far more familiar and comfortable in the use of video conferencing these last few months.
The chat room function does create the potential for inappropriate comments to be made by any party. Again the Tribunal has indicated that direction will be given. However, I do fear that some witnesses may find it difficult to resist the urge to comment on another witness's evidence as it is being given and questions of whether a party has been prejudiced or not by the making of such comments may arise.
I do not think that CVP hearings will replace in-person hearings once lockdown restrictions have been removed. The two Presidents of the Employment Tribunals in England and Wales and separately in Scotland have both indicated that the interests of justice in obtaining a fair hearing are central to the operation of the Tribunal system. If that means having to delay a hearing during the current pandemic then so be it. However, I am of the view that this whole technological experience will make parties and the Tribunal more open to the use of technology in the future. There is certainly a great deal of scope for far more preliminary hearings, either simply case management discussions or more substantive hearings on, for example time bar or disability status, to utilise the CVP system on an ongoing basis. Where the interests of justice are not compromised, the advantages of using CVP in appropriate cases is likely to benefit not only parties and their agents but also the Tribunal in using technology to help make the system more cost efficient. It fits current desires to cut down on unnecessary travel for environmental reasons and to facilitate more flexible and agile working patterns. It is likely that, in the future, applications for special measures for witnesses to give evidence via video link will be more difficult to oppose. It may be that this enforced acceleration of the implementation of technology into the Tribunal system could, in appropriate cases, be a positive step to make the process of giving evidence less time consuming, expensive and stressful for both employers and employees.