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14 October 2020
Imminent changes in employment tribunal (ET) procedures are likely to reduce case backlogs and lead to claims progressing to a hearing more quickly in a climate in which employment disputes are increasing. How will this affect employers?
In these uncertain times, few would venture to predict what the future holds. Yet even allowing for the unusual circumstances, it is almost inevitable that the coming months will see employers receiving more ET claims.
Not only are economic conditions ripe for more claims to be brought about employment disputes, but measures are currently being taken to increase the capacity of ETs to deal with a backlog of cases. Employers should prepare for a spate of claims, potentially including multiple ones, together with shorter than expected notice of final hearings.
Almost all users of the ET system will have experienced delays or difficulties in recent months due to the COVID-19 pandemic. And little wonder – statistics from the Ministry of Justice reveal a backlog of some 45,000 cases awaiting hearing. With such a huge number of pending cases on their books, some ETs have understandably been struggling to cope.
To compound the problem, the number of ET claims is sure to increase as the government's furlough scheme comes to an end on 31 October 2020 and furlough-related claims start to come through (eg, for unfair redundancy dismissals and deductions from wages). There are also likely to be increasing claims arising from workplace health and safety concerns relating to COVID-19. This is in a landscape where unemployment is already growing – almost always a catalyst for an increase in employment disputes.
In short, the need to ensure that the ET system is running smoothly has never been more acute.(1) ETs have used various methods to cope over the summer months and autumn has seen the introduction of further measures designed to get the ET system moving.
The government recently laid new legislation before Parliament, in the form of the Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (the regulations). These will amend the ET Rules of Procedure, with most of the changes coming into effect on 8 October 2020.
The regulations provide for short-track cases (involving simple, money-based claims) to be listed for hearing more quickly. Notice of a final hearing in a short-track case can be given before the date on which the employer's response to the claim is due to be presented, provided that the final hearing is listed for no sooner than 14 days later. This may mean that the current situation in which final hearings can be listed for many months away (even for simple cases) changes to one where, for certain claims, employers have just a few weeks' notice of a final hearing.
The upshot will be that, if parties wish to settle short-track cases, they will have to open a settlement dialogue quickly. In addition, the regulations encourage settlement by increasing the standard early conciliation period from one calendar month to six weeks (with no provision for extending the conciliation period further). This change will come into force on 1 December 2020.
One aspect of the regulations which may concern employers is that they allow multiple claimants to use the same ET1 form if their claims give rise to common or related issues of fact or law, and it is reasonable for them to do so. The current situation is that two or more claimants can use the same form only if their claims are based on the same set of facts. With the coming months likely to witness widespread redundancies, it is easy to imagine this change encouraging groups of colleagues combining to submit their claims in a single application.
One of the regulations' stated aims is to increase the capacity for hearings. The presidents of the ETs (for both England and Wales and Scotland) had already paved the way for this by issuing new Presidential Guidance designed to provide more flexibility around the way hearings are conducted during the COVID-19 pandemic. Among other measures, ET judges have been given the choice as to whether to conduct in-person, partly remote and wholly remote hearings.
Encouraging more remote (or partly remote) hearings appears to be the direction of travel, but the logistics of running such a hearing while still ensuring that all of the parties are fairly treated can be tricky. The regulations make several small but welcome practical changes that are likely to make judges feel more comfortable in choosing to designate hearings as remote or partly remote.
The regulations further address the need to increase the ETs' capacity by permitting non-employment judges to sit as employment judges and allowing 'legal officers' to carry out some of the background work which would otherwise be done by judges.
Considered separately, the above changes may seem like tinkering around the edges. But considered globally and in context, they will tackle the blockages in the ET system and undoubtedly result in some employers' inboxes filling up with claims in the not-too-distant future.
For further information on this topic please contact Rebecca Peedell at Lewis Silkin by telephone (+44 20 7074 8000) or email (firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
(1) For further information please see "How is Covid-19 affecting Employment Tribunals?".
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