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Giving evidence at a virtual Employment Tribunal Hearing

Posted: 3rd September 2020

The advice to witnesses about to take the stand and give evidence, in person, at an Employment Tribunal hearing has always centred around reliability and credibility. At its most basic, the Employment Judge must decide whether the witness told the truth, and whether they correctly recalled the facts about which they gave evidence. This remains true for virtual hearings, which is currently the only means by which evidential hearings in the Employment Tribunal will take place in Scotland. The Employment Tribunal use a platform called Cloud Video Platform (or CVP for short) and there are more practical issues to consider when using CVP, as I found out when using it for the first time.

Before the hearing

As with in-person hearings, the documents relating to the case should be available for everyone participating in the proceedings. Witnesses will most likely have to print these out themselves at home in advance of the hearing. These should not be written on or marked in any way.

A couple of days before the virtual hearing, the clerk will arrange a trial run. This will allow witnesses to familiarise themselves with the CVP setting. Camera and microphone adjustments should be made now.

It was at this point I realised I needed a webcam separate from my laptop and I made a speedy purchase from Amazon for £20. There are also issues with echoing during the virtual hearing making headphones with a microphone a good investment to avoid everyone else hearing what is coming through your speakers. Nothing more distracting for the Employment Judge and witnesses alike.

The day of the hearing

All being well, the parties, witness and Employment Judge will have joined the call at the designated time. The Employment Judge, both representatives and the witness giving evidence are all visible. Anyone else watching the hearing (members of the public etc) can see and hear everything but cannot be seen.

At in-person hearings, my advice to any witness is to make peace with the silence in between questions. For example, when the Employment Judge is reading evidence in the bundle or taking notes. The need to make peace with silence is even more important at CVPs. The delays are longer.

Something I found challenging during my first CVP was not having my client sitting beside me. The whispers with the client during evidence to clarify a certain point or advance a certain line of questioning are no more. The client should be confident to ask for a brief intermission if they need to speak with their representative.

The usual advice to witnesses at in-person hearings is still very relevant. For example, witnesses should watch the judge’s pen to ensure all their evidence has been captured by the judge. However, there are additional points to consider at a CVP. Speaking loudly and more clearly becomes even more important. Internet connection speed is vital and witnesses should consider giving evidence elsewhere with a faster connection if the trial run does not go to plan. Distractions should be kept to a minimum and a quiet room with a closed door will assist with this.

Ultimately, the Employment Judge (as the decision maker) needs to absorb everything a witness says as they are, more often than not, hearing the facts for the first time. Preparation and patience with this new process are key to this.

Duncan Milne, Solicitor
Employment Law
Blackadders LLP
@EmpLawyerDuncan

www.blackadders.co.uk

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