EAT Issues Guidance on the Remote Observation of Hearings by Non-Parties
It can be a concern for employers that Employment Tribunal hearings are generally conducted in public, meaning they can attract the attention of the press and other third parties.
In some circumstances it is also possible to observe a hearing remotely. The Employment Appeal Tribunal (EAT) has the power to grant members of the public and reporters access to remote hearings for observation purposes. The Courts and Tribunals Judiciary (CTJ) has now issued guidance on the subject.
Making the Application - How and When
Non-participants who want to observe a hearing remotely must submit an application. The guidance encourages applications to be made as soon as possible, ideally at least five days before the hearing date and, in any event, by no later that 4pm on the Friday before. Applications can be made without knowing the specific hearing date. Applications made outside of the prescribed timeframes will not generally be considered, unless there are compelling reasons why the application is late.
The EAT must be satisfied that the following three criteria are met when granting an application:
- remote observation must be in the interests of justice
- there is capacity and technological capability to enable transmission
- remote observation would not create an unreasonable administrative burden
Standard Directions
The guidance sets out standard directions for remote observers, including muting microphones and turning off cameras. Observers will be asked to identify themselves to the EAT prior to the hearing, by giving their full name and email address. An attempt to record or transmit the hearing by any means will result in a contempt of court finding.
The Employer's Perspective
Employers may be concerned about observers joining a hearing remotely. The CTJ recognises that in certain circumstances, remote observation can jeopardise the administration of justice. The guidance sets out standard directions including the obligation on remote observers to identify any other individuals who are present at the observer's location, and to comply with other requirements in order to preserve the integrity of the hearing. The guidance highlights the maximum penalty of up to two years imprisonment for contempt of court.
The guidance demonstrates that the EAT should take a balanced approach when granting remote observation of hearings. In this post-pandemic judicial landscape, remote participation and observation is here to stay.