Employment tribunal procedure (and early conciliation process) reforms

The UK Government has introduced new reforms to the employment tribunal system to address the impact of Covid-19, which has led to a huge backlog of cases and significant delays, as well as the need for distancing to minimise infection risk (see press release and new regulations). The changes are designed to increase flexibility for remote hearings and boost hearing capacity.

Key changes

The key reforms include:

• the deployment of non-employment judges into employment tribunals, if certain suitability criteria are met (for example, by being nominated and receiving appropriate consent)

• changes to the rules to allow more flexibility over virtual hearings. For example, rule 46, which provides that the public attending a remote hearing must be able to hear what the Tribunal hears is amended to say "as far as practicable"

• allowing legal officers (who are not legally qualified) to carry out certain tasks which are currently performed by employment judges, such as considering applications for extending time, amending claims/responses and for further information (but will not decide substantive issues). It is possible to apply for that decision to be reconsidered by an Employment Judge

• allowing multiple parties to use the same claim/response forms where there are common or related issues of fact or law, or it is reasonable to do so

• adding an exception to the rules which means that claims that have been withdrawn do not have to be entered onto the public register (which might incentivise claimants to withdraw to avoid having their name searchable online in the tribunal archive).

These measures are due to come into force on 8 October 2020.

Acas early conciliation

Important changes will also be made to the Acas early conciliation rules, including to allow for a fixed six-week early conciliation process in all cases, rather than the existing process of one month with the potential to extend by two weeks.  The rules will also be amended to allow greater flexibility in handling minor errors, for example to allow for the correcting of mistakes re the early conciliation number. Unlike the measures above, these reforms will come into force slightly later on 1 December 2020.

New Practice Direction and Guidance on remote hearings

The President of the Employment Tribunals (England & Wales) has also issued a new Practice Direction and accompanying guidance on remote hearings:

• The Practice Direction on remote hearings and open justice sets out the ways in which open justice will be safeguarded during hearings conducted wholly or partially remotely. It provides for observation of remote hearings by a member of the press or public and how to inspect witness statements and other case documents, subject to certain limitations such as remaining muted, no recordings or copies of documents.

• The Presidential Guidance on remote and in-person hearings, which should be read alongside the Practice Direction, explains:

  • the general factors that will influence the judicial decision on the format of the hearing, which include the availability of risk-assessed venues, personal circumstances of any participant and the nature of disputed evidence.
  • how the parties should prepare for remote hearings, and in particular how to ensure witnesses are ready and prepared to give evidence.
  • that electronic documents (PDFs) are preferred (and required where legally represented) because they do not carry infection risk and support the operation of remote hearings.
  • other Covid-19 safety measures, including the need to avoid double-handling of paper documents, separate sets of documents for those attending in person, and that the tribunal can refuse to accept documents being handed up (unless representative is wearing gloves).

See our coronavirus (COVID-19) feature for more information generally on the possible legal implications of COVID-19.