A Word from the Editor - June 2020

Author:
Alex Lock, DAC Beachcroft LLP
Date:
Monday, June 1, 2020

‘Justice delayed is justice denied’ is a well-worn phrase and one occasionally trotted out by representatives at preliminary hearings where they think they have the stronger case or, at least, want it to appear that they have. Clause 40 of the Magna Carta, dating back to 1215, states: “To no one will we sell, to no one will we refuse or delay, right or justice.”

While they did not have to deal with a coronavirus pandemic in 1215 – and the bubonic plague didn’t arrive until 1347 – courts were somewhat more rudimentary and employment tribunals were not even a glint in King John’s eyes. Although delay is an important consideration in the administration of justice, room also has to be made for the quality of that justice too.

Employment tribunals – and the courts – are now getting to grips with the balancing act that needs to been done in providing access to justice for aggrieved parties. On the one hand, it is necessary to find ways in which the wheels of justice can continue to turn, but, on the other, not at such a rate that they manage to run over the quality of what is dispensed in the process. Inherent in the concept of justice is the need for parties to have a full and fair hearing, for evidence to be produced and tested, and for a considered and reasoned decision to be made based on the law and principles of natural justice.

Despite reports in the press of an imminent vaccine for coronavirus, experts believe that it will be sometime next year at the earliest before one is created, produced and made available. This means that we are likely to have social distancing rules in place for the foreseeable future. In turn, that means hearings – both preliminary and substantive – being conducted remotely by telephone and video conferencing. Many lawyers and judges are, quite understandably, concerned as to whether the balance between getting on with it and the quality of what ‘it’ is may not be correct.

Human beings are social animals. We have evolved over tens of thousands of year in social groups and therefore think we are very adept at judging and assessing others: their mood, their motivation and their truthfulness. Thus, the thinking goes, how reliable is a remote hearing in providing a means by which the evidence of a witness can be tested? There will be a lot of information that does not come through via a camera and microphone that may inhibit the ability of the tribunal panel and the representatives to make those fine judgements.

I wonder whether such concerns are misplaced, however, and whether less information may, in fact, aid the process of getting to the truth. Many myths have grown up about the cues we pick up on to try and discern whether someone is telling the truth or not. Is it really the case that when someone answers a question and looks down that they are lying? If you wear black, does it mean you are not a truthful person? If you have a beard, does that mean you are trying to hide something? These are all propositions that have been put forward and have had some credibility in relation to judging the truth of what someone says. Clearly, at least some of them are unhelpful.

Perhaps the move to remote hearings may allow for a greater focus on facts, and documents and the words spoken by a witness will help to screen out some of these misplaced social cues and will aid the search for truth. Time will tell, but I suspect that there will be a run of cases heading to the EAT in 12 months’ time in which challenges will be made on the fairness of remote hearings, where parties argue that the desire to keep those wheels turning has meant that justice has been lost along the way.

Alex Lock, DAC Beachcroft LLP

The legal content in this article is believed to be correct and true on this date.