Right to a full tribunal of three members physically present and change in the Rules

[clana]

I have a final hearing which was listed to be heard by a full tribunal of three members.

Unfortunately, there were no lay members available on the day of the hearing , the judge says because of a mistake.

Finally, the judge succeeded to find two lay members but who were available only for two hours. As a consequence this hearing could not last until the end and another hearing has been listed for another day.

However, one of the two lay members is not available for this date and as a consequence he will attend this other hearing remotely by video.

However, I am unhappy with this because English is not my first language, what is at stake is too important because it is a final hearing and not only a preliminary hearing and a remote hearing would never be the same as a physical hearing.

Hence, I opposed this but the judge told me that he does not mind because it is him who decides.

According to the Rules we are entitled to have during the final hearing our claim heard by a full tribunal made up of a judge and two lay members.

During the pandemic remote hearings were used but now the pandemic is over. I think that I have seen a Presidential Guidance which says that now hearings should be heard like before but I have not succeeded to retrieve this Presidential Guidance.

I would like to know if the legislation has been amended to say that some members of the full tribunal can now attend remotely if they are not available to come to the tribunal for the date of the final hearing.

The Rules were made a long time before the pandemic so there is no reference in them to remote hearings. And, if the Rules have not been amended after the pandemic this should means that remote hearings were only a temporary measure to meet the need due to the pandemic.

[clana]

The issue is that the makers of the law which say that I am entitled to have my claim heard at a final hearing by a full tribunal of three members did not have in mind the possibility of some members of this hearing attending it remotely.

Hence, this could not be included in this law. Therefore, to authorise some member to attend the final hearing in this way the law should be amended

Moreover, it would not be fair to punish a claimant like me because of the shortcoming of the tribunal which did not organise itself properly so that two members were available for this hearing. Hence, for this reason also the new hearing should be conducted with all members being present

[ULA]

Does this still all relate to the same case for which you appear to have several threads running?

[ULA]

Notwithstanding your response to my post #3 I can respond as follows:

There is a Presidential Practice Direction On Remote Hearings and Open Justice which is still in force which became effective when the Courts and Tribunals started to be come operational again following their closure due to the pandemic. This set out guidance around Rule 46 (and also Rule 44) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides as follows:

"A hearing may be conducted, in whole or in part, by use of electronic communication (including by telephone) provided that the Tribunal considers that it would be just and equitable to do so and provided that 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."

Under the section 5 Definitions is set out several points but 2 are of specific relevance to answer your question:

5.1 "A "participant" in a hearing includes any of the following: an Employment Judge; a non-legal member; a clerk from Her Majesty's Courts and Tribunals Service (HMCTS); a party; any representative who may be instructed; any litigation friend, personal helper or other supporter; any witness who may be called; and any interpreter who may be required."

5.2 "A "partly remote"hearing is one where at least one participant is physically present in an Employment Tribunal venue and one or more of the other participants joins remotely by using a telephone or by using a personal computer, laptop, tablet or smartphone to log on to an audio or audio-visual platform. Given the number of potential participants, there are many permutations of a partly remote hearing. (It is sometimes referred to as a "hybrid" hearing.)

As I have stated this Practice Direction is still in force and applicable, meaning that one of the lay-members of the panel can log into the hearing remotely whilst everyone else is present.

[clana]

You make reference to "just and equitable" and this is the relevant issue because how to explain that two lay members and not only one were not available for this full hearing even though it was listed as a hearing with a full tribunal for a long time. Has not this been intentional to harm me?

And, will not be "fair and equitable" that to repair the harm done to me I am put at the same place that I woud have been if I would not have been harmed?

In order to achieve this next hearing woud have to be conducted by a full tribunal with all members being physically present as it woud have been for the initial hearing if all members would have been available and this initial heairng not be cancelled

[ULA]

I do not make reference to "just and equitable" Rule 46 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 states this.

The Tribunal system, if you have not heard, is very backlogged at the moment and mistakes do get made. This rule and the Presidential Practice Directions clearly sets out the ability for hybrid hearings to take place and from what you have stated a new date has been arranged whereby there will be a judge and 2 lay members in attendance albeit with one of them doing so remotely.

[clana]

The important point is that irrespectively of what the new rule says a remote hearing is never the same as a physical hearing.

And, what guarantee I have that the audio and video system will work properly especially that this employment tribunal seems to be very bad organised

The law which gives me the right to have my claim heard by a full hearig of three members was enacted before the pandemic so it could not have intended that the three members of some of them attend remotely. Hence, does this law need to be amendned and approved by the Parliament?

Moreover, it is not only one lay member who is not available for the day of the new hearing and as a consequence will attend it remotely but also the respondent.

If this alleged mistale woud not have happened I woud have been entiteld to have a hearing with all members and the respondent physicaly present. Hence is it fair to punish me for the shorcoming of this tribunal?