Those of you who have had recent dealings with the Employment Tribunal system will probably have encountered some of the many Covid related difficulties with the system including: technical issues at remote hearings; last minute postponements due to judicial staffing shortages; and unresponsive tribunal centre helplines.
An increase in unemployment during lockdown has resulted in the highest level of single employment tribunal claims since 2012/13. The backlog is at a 10 year high: an employee bringing a claim against their employer can expect a wait of two years to have their case heard.
In an attempt to address the issue, the government has introduced a number of reforms to the Employment Tribunal Rules of Procedure and the ACAS Early Conciliation (“EC”) procedure. The changes aim to “reduce unnecessary bureaucracy” in the existing system, allowing more flexibility for remote hearings and increasing Employment Tribunals’ capacity to hear claims, thereby clearing the backlog.
Here are the key changes that took effect from 8 October 2020:
- Multiple claimants will be permitted to use the same claim form, if they “give rise to common or related issues of fact or law or if it is otherwise reasonable for their claims to be made on the same claim form”. This is a broader provision than the current rule, which applies only if the claims are based on the same set of facts. Employers will be pleased to hear that correspondingly, the rules will be amended to allow a response form to contain a response to more than one claim if the responses or the claims give rise to common or related issues of fact or law, or if it is otherwise reasonable for the responses to be made on one single form. This is expected to save time and unnecessary paperwork.
- Importantly, amendments to the Early Conciliation Rules of Procedure mean that the basic period for ACAS Early Conciliation will be increased to six weeks, rather than a default of one month with a possible extension of a further two weeks. This is more simple and practical. Anecdotally, some employers were not being contacted until the third or fourth week of the previous early conciliation period. This extension will mean employers will have more time to conciliate with employees and avoid the tribunal system altogether. It also allows for the fact that ACAS are experiencing delays. Note, this change will not take effect until later, on 1 December 2020.
- Non-employment judges will be able to hear employment claims, subject to certain consents being provided to their appointment. This will include First and Upper Tier tribunal judges, High Court judges, circuit judges, district judges, deputy judges and Recorders. They are likely to be assigned to the more straightforward rather than complex claims, but this aims to combat staffing shortages.
- A new regulation will allow “legal officers” to be appointed to carry out certain functions currently carried out by employment judges. Legal officers will be permitted to carry out a range of case management functions, such as determining applications for an extension of time for responding to a claim or complying with a case management order, which are currently decided by an employment judge. It will, however, be possible for parties to challenge the decisions of legal officers: under new regulation 10A(2) of the ET Regulations, a party may apply in writing within 14 days of a determination, to the tribunal for a decision of a legal officer to be considered afresh by an employment judge.
- Further amendments are designed to facilitate remote hearings via CVP (the Ministry of Justice Cloud Video Platform). Provision for witness statements to be available for inspection other than during the course of the hearing, when the hearing is conducted by electronic communication and the current rule requiring parties and members of the public hear and see any witnesses as heard and seen by the Tribunal is amended to “so far as practicable”. This change will provide some flexibility in that respect to facilitate more remote hearings.
- Certain errors on the claim form in relation to name or address and even including the wrong Early Conciliation number, will not result in the rejection of that claim form. The employment judge will be able to take a view on whether the claimant simply made an error and where it would not be in the interests of justice to reject the claim, it will not be rejected. It is important for employers to note, however, that where the claimant has not included an EC reference number at all, rather than an incorrect number, the rules provide that the claim form must still be rejected.
- Employment Judges will be able to issue default judgments without a full hearing even where a preliminary hearing has taken place (for example, to determine whether the claimant has a disability). Judgments will also be able to be reconsidered by any judge, not just the same judge who gave the original judgment. The Tribunal will also have the power to list cases for hearing on receipt of the claim form provided that the hearing date is no sooner than 14 days after the response is due. This will allow more flexibility for tribunals to list hearings as quickly as possible – a welcome thought in light of the fact that some hearings are not being scheduled until 2022.
- Cases dismissed on withdrawal will no longer be entered on the public register, which means that employers who settle claims will not appear on the publicly accessible and searchable database.
Any measures designed to help the Employment Tribunals to tackle the backlog will be welcomed, particularly in terms of reducing bureaucracy and allowing the Tribunal to list hearings more quickly. The new six-week period for Early Conciliation in all claims could also result in a greater chance of pre-claim resolution, saving employers from extensive legal fees and the stress of the litigation process.
However, the success of the changes rely on their effective adoption, and while it may help clear the backlog, what of the expected rise in claims? With furlough coming to an end on 31 October, the number of redundancies are expected to soar and, with it, the number of workers who feel they have been treated unfairly. Whether the attempt to increase capacity and flexibility is sufficient to counter the further escalation of claims remains to be seen.
What does the backlog mean for employers?
The delays in the tribunals could have the effect of putting more pressure on claimants to settle. In some cases, employers should expect hearings in relation to claims issued now not to be scheduled until 2022. In terms of the commercial value of settlement, this gives employers more time to consider the best course of action, while employees will be under pressure to find a new job, rather than waiting for a finding by the tribunal. Employees who do suffer a large loss will however be better able to prove this loss at a late hearing.
If the delays continue, employers should consider collecting relevant documents and witness statements at an early stage, to help mitigate memory fade by the time the hearing commences.
Along with the measures outlined, Employment Tribunals are pushing parties to consider judicial mediation as an alternative option. This has the advantages that it can be done by video link or by telephone, usually involves less preparation than a final hearing, and can be dealt with in a shorter timeframe. If the mediation is successful, the case is then removed from the tribunal list, freeing space for other cases.
If you have any questions about these issues in relation to your own organisation, please contact a member of the team or speak with your usual Fox Williams contact.