RECENT CHANGES TO EMPLOYMENT TRIBUNAL PROCEDURE AND PRACTICE by ELIZABETH MARSHALL
Between April and June 2020, single claim Employment Tribunal (ET) receipts increased by 18%, whilst disposals dropped by 21% (when compared to the same period in 2019). The outstanding caseload for such claims rose by 31%. Whilst receipts and disposals fell for multiple cases (when compared to the same period in 2019) the outstanding caseload for such claims rose by 6%.
Tribunal Statistics Quarterly, Ministry of Justice, published 29 September 2020
It will be clear to any ET practitioner that the ET system is under immense pressure. So any new measure designed to increase capacity and simplify procedure should be welcomed.
Enter the catchily-titled Employment Tribunals (Constitution and Rules of Procedure)(Early Conciliation: Exemptions and Rules of Procedure)(Amendment)Regulations 2020 SI No. 1003 ( “the 2020 Regulations”).
The 2020 Regulations amend 2 key pieces of legislation – the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the 2013 Regulations”) and the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 (“the 2014 Regulations”).
This Practice Note is designed to give you the most useful amendments in a nutshell:
Commencement
The provisions of the 2020 Regulations that amend the 2013 Regulations come into force on 8 October 2020.
The provisions of the 2020 Regulations that amend the 2014 Regulations come into force on 1 December 2020.
Extending judicial capacity (in force 08.10.2020)
Regulation 3 allows for the “cross-deployment” of judges to the ET. The list includes circuit judges, district judges (including those who sit in the Magistrates’ Court), and deputy district judges.
Regulation 4 allows legal officers to carry out functions that are authorised by a Practice Direction from the Senior President of Tribunals. These functions include the following:
- rejecting a claim for certain substantive defects;
- dealing with an application to extend time to file a response;
- dealing with case management – including extensions of time to comply with case management orders, amending claims and responses where all parties agree, allowing additional information to a claim or defence, allowing different claims to be considered together;
- dealing with an application for postponement, provided it is more than 7 days before the listed hearing and all parties consent;
- dealing with a decision on which should be a lead case, provided all parties agree;
- fixing a hearing for preliminary consideration of a claim, where all parties agree;
- confirming a stay when the respondent is in liquidation or administration;
- dismissing a claim that has been withdrawn.
Multiple claims (in force 08.10.2020)
Regulation 6 extends the situations in which 2 or claimants may bring their claims on the same ET1. Now the claims need not be “based on the same set of facts” but may “give rise to common or related issues of fact or law”. There is also now the option: “if it otherwise reasonable for their claims to be made on a single claim form”.
Rejection: substantive defects (in force 08.10.2020)
Regulation 7 allows a judge to accept a claim form with an error in the name of either the claimant or the respondent, or in the early conciliation (EC) number, where it would not be in the interest of justice to reject the claim.
Multiple responses (in force 08.10.2020)
Regulation 8 allows an ET3 to include the response of more than one respondent or the response to more than one claim if the responses or claims “give rise to common or related issues of fact or law or it is otherwise reasonable for the responses to be made in a single response form.”
Reconsideration of rejection (in force 08.10.2020)
Regulation 9 now permits any judge to reconsider rejection of a claim.
Effect of non-presentation or rejection of response, or case not contested (in force 08.10.2020)
Regulation 10 allows a judgment to be issued following a preliminary issue hearing without a further hearing.
Initial consideration (in force 08.10.2020)
Regulation 11 removes the requirement for a judge, on initial consideration of the claim, to consider making provision in case management orders for preliminary/final hearings or judicial mediation/dispute resolution. This should speed up listing of short track claims.
Requirement to attend to give evidence (in force 08.10.2020)
Regulation 12 simply adds the requirement for written notification by the Tribunal to named witnesses.
Inspection of witness statement (in force 08.10.2020)
Regulation 13 permits statements in cases conducted by electronic means to be inspected by the public other than during the hearing.
Hearings by electronic communication (in force 08.10.2020)
Whilst witnesses and members of the public should always be able to hear witnesses in cases conducted by electronic means, Regulation 14 adds the sensible provision that “so far as practicable”, witnesses and members of the public should be able to see witnesses in such cases.
Fixing of preliminary hearings (in force 08.10.2020)
Regulation 15 widens the scope for the ET to fix a preliminary hearing of its own initiative “at any time”.
Notice of final hearing (in force 08.10.2020)
Regulation 16 provides that a date for final hearing can be given before the date that the response is to be presented, provided the hearing is no sooner than 14 days after the date on which the response is to be presented.
The Register (in force 08.10.2020)
Regulation 17 removes the requirement to enter claims that have been dismissed after withdrawal onto the Register.
Changing early conciliation rules (in force 01.12.2020)
Regulation 19 now permits ACAS to contact the prospective claimant to correct errors or obtain further information.
Regulation 20 extends the period of conciliation to 6 weeks but removes the discretion to extend beyond 6 weeks.
Regulation 21 links with Regulation 20, to remove reference to a period of extension from the requirement to issue an early conciliation certificate.
Regulation 22 provides for transitional arrangement for the period of early conciliation.
The Explanatory Note to the 2020 Regulations states [t]he primary impact of these changes is to reduce unnecessary bureaucracy in providing access to justice through the employment tribunal system. We wait to see if they do.