Changes to Employment Tribunals

With the end of the Coronavirus Job Retention Scheme, also known as furlough, on 31st October, it is expected that the number of redundancies will increase, even with the schemes that the government has announced to try and fill the gap. That will almost certainly lead to an increase in the number of tribunal claims by employees who feel that they have been the victims of unfair dismissal.

This will further increase the backlog caused by both the pandemic and the abolition of tribunal fees in 2017.

Ministry of Justice figures from early September showed that 39,093 single tribunal claims were outstanding as well as 5,915 multiple claims. The backlog – which is 26% higher than it was when lockdown was introduced – has increased every week since then.

With this in mind, the government already has, and will further change the employment tribunal rules to try and reduce the administrative backlog and get the system moving again.

What are the changes?

More judges

Non-employment judges, including High Court Judges and Circuit Judges, will be able to sit as employment judges to increase capacity. Certain eligibility criteria will need to be met.

Notice of final hearing

There is also a change to notice rules, in that notice of a final hearing can be given before the date that a response is required, provided the hearing does not take place more than 14 days after that date.

Expansion of legal officer duties

To reduce the administrative load on employment judges, the new rules are shifting some duties onto legal officers, provided the change is authorised by the Senior President of Employment Tribunals.

Legal officers may be authorised to determine various applications, including:

· giving more time for a response;

· allowing more time so a case management order can be complied with;

· making amendments to claims/responses;

· asking for further information about a claim or defence;

· deciding whether to dismiss a claim on withdrawal;

· deciding whether an ET1 claim form is defective;

· making decisions on certain applications for a postponement or an extension of time.

If the parties to a claim do not agree a legal officer’s decision, they can challenge it by applying in writing for an employment judge to look at the matter again.

Remote hearings

The rules will also change on employment tribunal hearings that are carried out remotely by video conferencing.

Under the in-person hearing system, witness statements can only be inspected by members of the public who attend the hearing. Now, with the updated rules, if the hearing is being conducted remotely, statements may be made available other than during the course of the hearing.

It has also been a requirement that parties and members of the public be able to see witnesses, but the new rules mean that this will only be the case “so far as practicable”.

Flexibility on claim form acceptance

There will be more flexibility for judges to accept claim forms despite errors in names, addresses or early conciliation numbers. They will also be able to reconsider rejected claims or responses.

Reconsideration by other judges

Hitherto, only the judge who had originally rejected a claim could reconsider it but now any judge will be able to do so.

Recording of decisions

If a case is dismissed after being withdrawn, it will no longer have to be recorded in the Register of Judgments, Orders and Fines. This is a public register, part of which contains details on tribunal decisions. It is maintained by The Registry Trust, on behalf of the Ministry of Justice, and is available to search online.

Default judgments

If the preliminary point determined at the preliminary hearing is uncontested, or if there is no response, a judge will be able to issue a default judgment without having to sit through a full hearing. However, it is unlikely that this power will be used very often.

Multiple claimants

The new rules will make it easier for multiple claimants and respondents to use the same ET1 and ET3 forms if the issues are common or related, or if there is a good reason for them to do so.

Early conciliation

The early conciliation period will be extended to six weeks instead of one calendar month. However, conciliators will no longer be able to extend the early conciliation period.

At present, ACAS has to offer early conciliation for one month and the only way that can be extended is if both sides agree with the conciliator that they wish to do so.

When do the changes take effect?

Although most of these measures came into force on 8th October, those regarding early conciliation will come into force on 1st December.

Implications

These are significant changes and tribunal users will need to be aware of them as they will alter the way claims are made, progressed and settled. We recommend that anyone who thinks they may soon be involved in a tribunal claim, or is currently involved in one, should obtain specialist legal advice as soon as possible to find out what the implications are.

Written by

Lucy Stephenson, Solicitor at rradar