Amendments to Tribunal Procedures to help clear the backlog

The Employment Tribunal system has been creaking since fees were abolished in 2017 (having only been introduced in 2013). The closures and associated measures caused by COVID-19 have added further pressure to the system, leading to a significant backlog. By way of example, we’ve this week had a case listed for a hearing in late 2022.

New legislation hopes to address the backlog.  In keeping with the recent trend or giving legislation a snappy title, the Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 offers more flexibility with remote hearings, changes the process of ET1 and ET3 forms, allows judges from outside the employment tribunal to sit in on employment tribunals and allows for legal officers to deal with some matters (rightly) that are usually exclusive to employment judges.

The most significant change for employers is likely to be an increase to the period allowed for ACAS Early Conciliation from one calendar month (extendable with everyone’s agreement by 2 weeks) to 6 weeks. This reflects a backlog also being experienced by ACAS.

We consider the changes on more detail in this alert.

Remote hearings

In order to facilitate remote hearings due to COVID, the inspection of witness statements can be carried out outside of the course of the hearing. Currently, the parties and members of the public must be able to hear what the tribunal hears and see any witness as seen by the tribunal. A slight amendment has been made that the parties and members of the public can hear what the tribunal hears ‘and, so far as practicable, see any witness as seen by the tribunal’.

Claim and response forms

The rules currently allow two or more claimants to make their claims on the same claim form if their claims are ‘based on the same set of facts’. This will be amended so that multiple claimants can 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’. There will also be a further amendment to allow multiple responses on the same form.

There are also amends to the process of rejecting claims. Currently, claims are rejected if they contain the wrong early conciliation number. This will change and so long as the employment judge considers that the claimant has made an error in relation to the EC number, a claim will not be rejected.

Judges and Legal Officers

To increase judicial capacity in tribunals, non-employment tribunal judges will be allowed to sit as judges in tribunals. These include judges of the First-tier Tribunal and Upper Tribunal, High Court judges, deputy High Court judges and circuit judges.

Legal officers will also be able to carry out tasks usually assigned to employment judges. They can consider the acceptance or rejection of claim forms, extend time for an ET3 or for compliance with case management orders, give permission to amend claims and responses when both parties consent, order further information and dismiss claims by consent upon withdrawal. They will not decide substantive matters and do not need to be legally qualified.

Judges can now also reach a default judgment at the preliminary hearing without a full hearing on the basis that a judgment can be reconsidered by any other employment judge.

Listing rules

The current rules mean that tribunals cannot arrange a hearing date before receipt of the response form which is creating delays in setting hearing dates. Notices of final hearings can now be given before the date the response is to be presented, so long as the date of the hearing is 14 days after the response deadline date.

Early conciliation

The early conciliation period is to be extended to 6 weeks instead of one calendar month with the possibility of extension. This will hopefully help the backlog that ACAS are experiencing. Note that Claimants can still say they aren’t interested and be issued with their certificate. This change will come into force on 1 December 2020. The other amends listed above will come in to force on 7 October 2020.

If you have any queries about employment tribunal processes or any other HR query, please contact our employment team on 01228 552600 or 01524 548494.

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