The future of Employment Tribunals
Employment tribunals have been under considerable pressure for many years; the ill-fated introduction of tribunal fees in 2013 was an attempt to ease the workload on the system – and it did, according to figures, reduce the number of claims by up to 80% - but this foundered in 2017 with the decision of the Supreme Court on the legality of the fee system and the number of claims rose again significantly.
Coupled with funding shortages for the courts and tribunal system in general, the strain continued to increase. With the arrival of the COVID pandemic in March 2020, the case for reform became inescapable.
In June 2020, with the disruption caused by the pandemic and lockdown measures at its highest, the tribunal service issued what it called a roadmap that addressed how it intended to deal with listing and hearing cases in the face of those challenges. That roadmap was updated in March 2021 and with the challenges to the system that continue to affect the service, a further document has now been issued that will explain what HMCTS anticipates happening in the 2022/23 financial year.
The roadmap document acknowledges the adaptability of the Employment Tribunals judiciary; a high number of hearings have taken place on video which would not otherwise have happened; the two ET 2 jurisdictions regularly spend 2,000 to 3,000 hours a week on the HMCTS Cloud Video Platform.
What will be changing?
Instead of sending and receiving letters and emails to and from various regional offices and hearing centres, parties and their representatives would access their case information through a portal designed for that purpose, known as MyHMCTS. If all goes well, HMCTS intends this to become the primary means of communication with the Tribunal, allowing for automated updates. However, there will still be paper-based channels available as it is recognised that not everyone will have access to the new systems.
HMCTS also intends to replace CVP, the Cloud Video Platform with the Video Hearings service, rolling out to the Employment Tribunals and other parts of the justice system during 2022.
Although, as the document says, there can be no return to the pre-2020 normal in the Employment Tribunals, there is one area where HMCTS wants to “take a few steps back” and that is their current reliance on the use of video. The majority of hearings are taking place on a fully remote basis and in some areas of the country, that figure reaches 90%.
HMCTS said “Our shared view remains that justice is best experienced by the vast majority of individual litigants in a face-to-face environment.” However, the document continues “We want to bring that percentage down…[but] we accept that, in some cases, a video hearing reflects the preferences of the parties and, if they have them, their legal representatives. It can be less costly and less disruptive to the lives of those participating.”
Default hearing formats
Of course, the format of the hearing will be different depending on the tribunal in question – this is because of a number of variables, including the IT facilities at the venue, the case load that the tribunal is facing and the number of rooms available.
So, what sort of format can you expect? The default will depend on the type of hearing you are facing.
• Preliminary hearings listed in private for case management purposes will continue to default to telephone or video.
• Preliminary hearings in public to determine a straightforward preliminary issue (e.g. time limits in an unfair dismissal case) will continue to default to video.
• Complex preliminary points requiring more detailed evidence (e.g., the application of TUPE, whether a person is disabled for Equality Act purposes, employment status) will, subject to local buildings and facilities, make greater use of in-person hearings.
• Preliminary hearings to consider an application to strike out or for a deposit order will continue to default to video.
• Applications for interim relief will continue to default to video.
• Judicial mediations will continue to default to video (although, in some parts of England, telephone mediation will continue).
• Final hearings of short track claims (unpaid wages, notice, holiday pay, redundancy pay etc) will, for the time being, continue to default to video. However, subject to local buildings and facilities, there will be greater use of in-person hearings where the case involves significant disputed evidence.
• Final hearings of standard track claims (unfair dismissal) will vary. In most parts of Britain, as requirements for social distancing are removed, HMCTS want them to return in greater numbers to in-person, especially where the case involves significant disputed evidence.
• In parts of the country where the backlog is greatest, final hearings of standard track claims will continue to default to video.
• Final hearings of open track claims (discrimination and whistleblowing) should default to in-person. This is achievable in Scotland, where it will be the default approach. However, it is not achievable in all parts of England and Wales due to factor such as backlog of cases or lack of hearing rooms. For the time being, there will be greater reliance on video in such locations, including hybrid formats.
• Other hearings listed specifically to deal with applications for reconsideration or costs/expenses will default to video.
It will be open to the judge to decide that the default position should not apply. If the parties feel that they would like a different format, they can apply to the tribunal.
Regardless of the type of tribunal or hearing you are facing, it will be a lot easier to navigate and handle with professional legal representation at your side. As soon as you learn that you may be facing a tribunal or court hearing, seek legal advice at once.