Hurry up and wait – will the new employment tribunal procedure rules address the case backlog?.

Ministry of Justice data shows that the backlog of employment tribunal cases waiting to be heard reached 45,000 in August 2020.  The backlog has increased every week since lockdown began. The Office of National Statistics data shows that unemployment hit 4.1% in July 2020.  With a further spike in employment tribunal cases expected in the coming months as the furlough scheme ends in October 2020, the Government has outlined new reforms aimed at boosting hearing capacity and providing quicker outcomes at employment tribunals.

The reforms, in the shape of The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020, have been laid before Parliament this week.

Further details are awaited but the new measures will include:

  • allowing the deployment of non-employment judges into employment tribunals (subject to meeting suitability criteria);
  • increased flexibility to allow virtual hearings;
  • amending the ACAS Early Conciliation process and employment tribunal rules to allow greater flexibility in handling minor errors;
  • extending the period for ACAS Early Conciliation from one month (with an option to extend) to 6 weeks to reduce complexity;
  • where an employer has failed to respond satisfactorily to an employee’s claim or if a claim is not contested and a judge has directed that a preliminary issue requires determination, a judgment may be issued after that issue been determined, without a further hearing;
  • allowing multiple claimants and respondents to use to use the same employment tribunal forms – where claims give rise to common or related issues of fact or law or it is otherwise reasonable; and
  • allowing legal officers to carry out some of the administrative tasks currently carried out by employment judges.

The measures for the employment tribunal rules, use of legal officers and cross-deployment of judges will come into force on 8 October 2020. The measures on Early Conciliation will come into force 1 December 2020.

The reforms are important to tackle the challenges posed by the COVID-19 pandemic although they form part of a wider plan to update the court system, which includes £80m funding, 1,600 additional staff, temporary Nightingale Courts and technology rollouts.

The delays in the tribunals have been suggested as putting pressure on claimants to settle. Certainly employers can expect any claims being issued now will not be heard well into 2021, which gives a breathing space to consider the commercial value in settlement whilst an employee is under pressure to find a new job rather than wait for a tribunal finding. The effect of these new rules will remain to be seen and whether they are sufficient to counter the expected rise in cases as a result of the redundancies occurring combined with a rising unemployment rate.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP.

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