Authors:Douglas Johnson
Last updated:2023-09-18
“Accessing hearings online might be an interesting option for our clients’ supporters.”
Marc Bloomfield
Description: Laptop compter (Hasan Albari_ Pexels)
Who would have thought, one year ago, that week-long trials would be conducted remotely? Was it possible to imagine justice – so dependent on the primacy of oral evidence – taking place without all parties physically being in the same courtroom? So much depends on nuance, not just of words, but of body language. Judges give subtle hints; solicitors pass notes to barristers and check things with the client; documents can be passed up and shared. In a courtroom, judges even sit physically higher up – on a dais – not close-up on a screen.
So it was that both parties in an employment tribunal listed for eight days of hearing in July 2020 thought it was certain the case would be adjourned. At a pre-trial hearing, however, the judge pointed out that someone’s case had to be the first to go ahead on the Cloud Video Platform (CVP).
The result was a resounding success for the claimant, an ‘experienced drama and performance teacher with an excellent prior working record’, as the tribunal found Joanne Lucas to be (Lucas v John Kyrle High School and 6th Form Centre Case No 1301603/2017, 29 October 2020 at para 31). Soon after taking up her post in 2015 at the school in Ross-on-Wye, she had also become a union rep in her spare time. Unfortunately, the school’s headteacher took an antagonistic and ‘pejorative’ attitude (para 70) towards her union role – and the tribunal heard evidence from previous union reps at the school of similarly hostile and toxic working relationships with him. The tribunal concluded that the decision to proceed down a disciplinary route on charges of gross misconduct and Mrs Lucas’s dismissal were because of her trade union activities.
Mrs Lucas also succeeded in her claims of discrimination arising from disability, a failure to make reasonable adjustments and for automatic unfair dismissal because of her union activities.
Surprisingly, the central character, headteacher Nigel Griffiths, refused to give evidence to the tribunal, leaving other staff to do so. The tribunal drew an adverse inference from this failure to explain himself and concluded that his state of mind, which led to the claimant’s dismissal, was ‘inextricably linked to the claimant’s trade union activities’ (para 214).
Mrs Lucas’s solicitor, Colin Henderson of Lawyers for Teachers, told me that there was a lot of local interest in the case. Ross-on-Wye is an hour and a half away from Birmingham, where the employment tribunal was to sit. An incidental side-benefit of the entire trial being held online was that interested members of the public could dial in to watch proceedings. Just because hearings are online does not reduce the duty to hold them in public: the principles of open justice require that members of the public can follow the proceedings. For the first time, a trial held remotely made the tribunal so much more accessible to those parents and members of the community who wanted to hear and understand what had been going on in their local school.
Since that hearing in July, the employment tribunal president (England and Wales) has issued a Presidential Practice Direction on Remote Hearings and Open Justice (14 September 2020). This describes the ways in which tribunals can still operate partly or wholly remotely and also guarantee the ‘paramount importance of the principle of open justice’ (para 1). In short, any member of the public can email in to request access to an online tribunal.
This might be an interesting option for many supporters of our clients and could improve access to the courts, as well as contributing to greater public understanding of the judicial process. As such, it is firmly to be encouraged.
Henderson said to me afterwards that:
CVP actually allowed better public access and community engagement than a physical public hearing as it would have taken huge commitment for interested local residents to attend physically. We typically had five or six local people logged in, sometimes far more. Community interest remained and spread to other management issues and, following Jo’s victory, a petition to remove the school management. CVP is not perfect; glitches do happen, but I’d encourage activist lawyers to embrace its accessibility, especially in campaigning cases.