WRC Notice to Parties, Representatives and Stakeholders on Remote Hearings
From 10 July 2020 the WRC rolled out remote hearings on consent with a focus on complaints submitted in relation to Organisation of Working Time Act 1997, Payment of Wages Act 1991, Industrial Relations Act 1969 and Terms of Employment (Information) Act 1994 etc.
This followed an extensive consultation process1 run in two phases from April to June 2020. Having regard to the need to ensure fairness for all parties, the WRC advised that over time, it would expand the range of cases amenable to remote hearing, in light of the developing experience of all parties of using the new procedures and technology.
Introduction of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Section 31) (Workplace Relations Commissions) (Designation) Order 2020 – SI 359/2020
On 24 September 2020, SI 359/2020 came into force. This Order assigned the WRC as a “designated body” for the purposes of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (‘the 2020 Act’). The Act makes explicit provision for remote hearings thereby enhancing the WRC’s existing powers to hold remote hearings and removing any requirement for parties’ consent.
The introduction of level 5 restrictions from 21 October 2020 has accelerated the need for remote hearings whilst face to face hearings are not possible.
The Order allows the WRC to schedule any type of complaint submitted for adjudication as a remote hearing - subject to the scheduling being in the interests of justice and fairness per section 31(2) of the 2020 Act.
Therefore, unless it appears to the WRC that conducting proceedings via remote hearing could be unfair to any of the parties involved in a particular complaint or would otherwise be contrary to the interests of justice, the WRC will schedule the case as a remote hearing. It should be noted that in some cases part of a case may be suitable for remote hearing with the remainder heard in person, where circumstances allow.
Under the Order the WRC has been designated as a body which may adopt such practice and procedures, as are necessary to enable the conduct of a hearing by remote hearing to ensure efficiency in the conduct of hearings under the enactment2.
In considering whether to proceed by way of remote hearing would be unfair to the person or would otherwise be contrary to the interests of justice, the WRC will have due regard to
fair procedure and natural justice and its obligations under equality legislation. The WRC will have regard to the following non-exhaustive set of factors when considering any objections
from parties to the case proceeding by way of remote hearing:
• All cases will be considered amenable to remote hearing, unless the parties can demonstrate how holding a remote hearing might not be in the interests of justice or would breach fair procedures, both of which are subject to a high threshold.
• The length of the delay that will likely result if the hearing of the complaint(s) is to be held in person3 rather than remotely.
• Capacity and resources of the Workplace Relations Commission (WRC).
• The complexity of the case, the number of witnesses required to give evidence and whether the nature of any disputed evidence is such that fairness and justice require it to be evaluated by the AO in a face-to-face environment.
• The personal circumstances of either party or any participant which would include disability or any specific accommodations that they may require to effectively participate in the hearing (including the use of an interpreter or attendance of a support person).
• The ability of either party to engage in the hearing in a meaningful manner which would include considerations such as access to broadband and the requisite IT
• Whether the parties are represented; representation may favour the hearing being held by remote means.
• Whether there are any public health travel restrictions in place at the time of the objection which would preclude the WRC from scheduling a face to face hearing in relation to the complaint.
• Any specific exceptional circumstances in a particular case, which might present a material risk of unfairness or injustice.
All parties and representatives are asked to be positively disposed to remote hearings where mediation or disposal of the case on the papers is not possible.
Where a party objects to the decision of the WRC in relation to a remote hearing, they may make submissions to the WRC within 5 working days of the hearing notice – such submissions will be considered by an Adjudication Officer.
Where proceeding to hearing, the parties must comply with the WRC’s procedures in relation to providing advance written submissions and witness lists (if applicable) as per section
31(1)(d) of the 2020 Act in order to avoid undue delay.
A remote hearing in Employment Equality or Unfair Dismissal complaints may not proceed, in situations where all required written submissions and/or relevant documentation has not been forwarded by the parties and exchanged with the other side at least 21 days prior to the date of hearing.
Submissions summarising the facts and legal issues and relevant supporting evidence should be paginated, with numbered paragraphs, for ease of reference at the hearing.
All documents should be emailed to email@example.com with the case reference, and copied to the other side/s.
The admissibility of any subsequent material will be a matter for determination by the Adjudication Officer having regard to the powers under section 31(1)(d) of the 2020 Act and the need to provide both parties with an effective remedy without undue delay.
Subject to Government health guidelines, the WRC will prioritise older cases for in person hearings when legislation has been enacted, where the parties have indicated and the Adjudication Officer accepts, that they are unsuitable for progression virtually. However, these in person hearings will be limited in number given the requirements around public health and this capacity issue will be kept under review.
1 Workplace Relations Commission: -Mediation and Adjudication During Covid-19 - 18 June 2020.
2 Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 (Section 31) Workplace Relations Commission) (Designation) Order 2020 – SI 359 of 2020.
3 Subject to and informed by pertaining public health advice