23 September, 2020
The Government has announced new reforms to the Employment Tribunal Rules of Procedure 2013, with the aim of increasing the employment tribunals' capacity to hear claims and ensure a speedier resolution of cases for businesses and employees.
The main driving force behind the reforms is the employment tribunals' lack of capacity caused by an increased caseload following the abolition of tribunal fees in July 2017. The changes to the ET rules aim to increase judicial capacity to hear cases by allowing non-employment judges to sit in tribunals if certain conditions are satisfied. In addition, so called 'Legal Officers' will be allowed to carry out some of the tasks currently performed by employment judges, such as extending time for an ET3 or compliance with case management orders and ordering further information.
It is well known that the employment tribunal system has been struggling to cope with demand for some time due to a lack of administrative resource. Whilst this was causing significant delays pre-pandemic, the situation is only being made worse by the current restrictions and we are seeing final hearings being listed well over a year after the issue of a claim. A change to the listing rules means that the notice of a final hearing may now be given before the date that the response is to be filed. It is hoped that allowing tribunals to list cases for a hearing on receipt of the claim form will ensure maximum flexibility to list hearings as quickly as possible.
Further changes that are being introduced to alleviate current delays include widening the scope for multiple claimants and respondents to use the same ET1/ET3 forms in certain circumstances and allowing claim forms to be accepted despite an error in the EC number.
Another key factor which has brought about the reforms is the requirement to conduct hearings remotely in light of the COVID-19 pandemic. Changes have been made to the rules which relate to how hearings are conducted, including the visibility of witnesses during the hearing and the availability of witness statements to members of the public, in order to facilitate remote hearings.
Other reforms include an amendment to the requirement for all judgments to be entered on the public register, which will mean that cases dismissed on withdrawal will no longer have to be included. All the changes noted above come into force on 8 October 2020.
There are also changes to Early Conciliation (EC) rules which mean that the EC period will be six weeks instead of the current one calendar month and there is no longer any power to extend this period. This change will come into force on 1 December 2020.
Aside from a brief period at the start of lockdown, Employment Tribunal business has continued throughout the pandemic, although it is very much not business as usual. In person hearings are now being heard again, albeit in small numbers, and James Barron, Associate in the Employment Team, has given his practical tips after representing a client on a 3-day hearing in Manchester at the start of September.
"Things feel very different attending Employment Tribunals than they did prior to the pandemic.
Before you attend any hearing, you will notice a few key changes such as the bundle of documents needs to be sent to the Tribunal 72 hours before the first day of the hearing. This means that ensuring all documentation is ready in advance is more important than ever.
Each Tribunal room has a maximum capacity that it can hold, therefore I would advise contacting the other side and determining how many people will be present on each side prior to the hearing and if possible seeking to timetable proceedings to allow this to take place. The Tribunal will need the names of all attendees each day so if there will be any observers you need to know in advance how many there will be.
A key consideration in the current circumstances is security and the time these checks are taking. Employment Tribunal's like all court buildings are subject to a high degree of security checks. Due to the need for social distancing these checks are taking significantly longer than normal. Therefore, remain patient and give yourself extra time to get through security when attending a hearing.
Finally, you will notice significant differences in the lay out of the Tribunal room and it may look quite different to what you may be used to. The observers are also not necessarily directly behind the advocates so you may need to find alternative ways of passing messages to your solicitor or barrister if something comes up during cross examination as passing over a post-it note is not possible in the current environment."
The Forbes Employment team can provide support to businesses in a cost-effective way to ensure that they are in the best possible position to defend a claim brought against them. Our team has expertise in representing clients up to and including final hearings, which can be of real benefit because we know the case inside out therefore saving clients' time and money.
On 13 October 2020, Forbes Employment team is hosting a Mock Employment Tribunal, the first in the country, looking at employment law issues arising out of the COVID-19 pandemic. The online interactive session will recreate a final hearing based on an alleged unlawful furlough process, together with health and safety concerns raised by an employee forced to return to work during the pandemic. To book your place, please click here.
We will also be discussing the impact of the new ET rules, along with helpful hints and tips to assist clients deal with claims as quickly and efficiently as possible.