In this blog, Adam Ohringer, Cloisters, considers the new Regulations issued today to tackle the backlog in cases in the Employment Tribunal: The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020.

According to the Business Secretary, Paul Scully:

The employment tribunal system has held up very well in the face of an increased caseload and the impacts of COVID-19 – but these changes will boost its capacity further.

Anyone who has accessed the Employment Tribunal system over the last 6 months will have a view on the accuracy of this statement.  The postponement of hearings (often at the last minute), delays in having correspondence and applications considered and trial dates being set for the distant future has become the norm.  The Law Society Gazette reported that, between March and August this year, the backlog of cases waiting to be heard increased by 26%.

Not wishing to rest on its laurels, the government is amending the Employment Tribunal Rules of Procedure to ‘provide further flexibility to the system to ensure workers and businesses receive quick and fair resolutions to disputes’.

If you are expecting something excitingly dynamic and progressive, please don’t hold your breath.  Instead we have a plan from the government to push the growing stack of cases from one side of the Lady Justice’s desk to the other.  The main changes being brought in by the Regulations are:

  • Judges and tribunal judges from other UK jurisdictions may be appointed to sit as Employment Judges.
  • Legal Officers may be appointed to make certain case management orders. There will however be an automatic right to have any such orders reconsidered by an Employment Judge.
  • Rule 9 which allows claims from multiple claimants to be presented on the same ET1 where they are based on the same facts will be rehabilitated by opening it up to claims which ‘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’. This provision had fallen into disuse since the restrictive and panic-inducing Court of Appeal judgment in Brierley v Asda Stores Ltd [2019] ICR 910 made its use a high-risk strategy.  A similar amendment has been made to rule 16, allowing multiple respondents to respond using one ET3.
  • Rule 12 will be amended to give Employment Judges the power to accept a claim in which the wrong ACAS early conciliation number has been entered if ‘the Judge considers that the claimant made an error in relation to an early conciliation number and it would not be in the interests of justice to reject the claim.”. This will effectively reverse the EAT’s decision in ON Control Solutions Ltd v Caspall [2020] ICR 552.
  • Rule 44 concerning the inspection of witness statements by the public will be amended for electronic hearings to allow inspection to take place at times outside of the course of the hearing.
  • Rule 46 is also amended to say that public attendance at an electronic hearing shall only be guaranteed ‘so far as practicable’.

These changes will come into effect on 8 October 2020.

Changes are also made to the Early Conciliation Rules of Procedure which will come into effect on 1 December 2020.  They are relatively minor except that:

  • The standard one month period for early conciliation is increased to six weeks. However, the power to extend the conciliation period with the agreement of the parties has been removed.

How any of this will substantively address the increasing backlog of cases in the Employment Tribunals remains a mystery.  A move to conduct an increasing number of hearings by video must be part of the answer.  Although the Regulations hardly touch on this, the President of the Employment Tribunals (England and Wales) issued Practice Directions on 14 September 2020 to facilitated this:

What the Tribunal is clearly desperate for is the staffing and resourcing required to make the transition into a modern and efficient public service.

Adam Ohringer

18 September 2020