On 17th September 2020, the Business Minister, Paul Scully announced reforms to help the Employment Tribunal system operate more effectively in the new normal. The changes to the Employment Tribunal rules will allow more flexibility for remote hearings and reduce the burden on courts, claimants and respondents. It will help tribunals hear more cases and make courts space available for other urgent cases, an important step in addressing the impacts of COVID-19.
The changes will be delivered through the Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020
These Regulations amend 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”).
The default Early Conciliation (EC) period is extended from one calendar month to six weeks. [Reg.20]
Under Old Rule 6, the Conciliation Officer has a duty to try and promote a settlement for a period of one calendar month from the date on which the claimant first contacts ACAS. The Conciliation Officer may extend this period if there is a reasonable prospect of achieving a settlement. The new Regulations amend Old Rule 6 so that the EC period is six weeks instead of one calendar month and there is no longer any power for Early Conciliation Officers to extend the period.
This comes into force on 1st December 2020.
Flexibility in remote hearings
In order to facilitate remote hearings in response to the COVID-19 pandemic, old Rules 44 (inspection of witness statements) and 46 (hearings by electronic communication) are amended. Old Rule 44 requires that witness statements should be made available for inspection during the course of the hearing by members of the public attending the hearing. It is amended so that, in the case of a hearing conducted by electronic communication, inspection can happen at other times and not only during the hearing.
Old Rule 46 says that in a remote hearing, the parties and members of the public must be able to hear what the tribunal hears and see any witness that the tribunal sees. This is amended so 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’.
Non-employment judges will sit in employment tribunals
These include judges of the First-tier Tribunal and Upper Tribunal, High Court judges, deputy High Court judges and circuit judges [amends Old Rule 8 ET Rules 2013];
Multiple claimants and respondents will be able to use the same ET1 and ET3 forms [amends Old Rules 9, 12 and 16 of ET Rules 2013]
Old Rule 9 allows 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 rule is amended so now 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’.
Claim forms will be accepted even if there is an error in the Early Conciliation Certificate number
The new Regulations amend Old Rule 12 which provides for the circumstances in which an ET1 claim form (or part of it) will be rejected. This is where the claimant cannot supply evidence to show that they went through Early Conciliation before starting Employment Tribunal proceedings. The claim can be rejected if it states the wrong EC Certificate number.
Old Rule 12 is amended so that now, the ET1 will not be rejected if the EC Certificate number on the ET1 form is not the same as the EC number on the EC certificate but the judge considers that an error was made on the EC number and it would not be in the interests of justice to reject the ET1.
Old Rule 12(2A) currently allows the judge to accept an ET1 even if there is a minor error in a name or address. This rule is amended so that the ET1 can be accepted if there is an error, not only where there is a ‘minor’ error.
Expansion of Legal Officers role
Legal officers can now make certain decisions which have usually been reserved for Employment Judges subject to authorisation by the Senior President of Tribunals in a practice direction [new Rule 10A inserted into the 2013 Rules and new Rule 10B lists the types of functions that may be authorised] ;
Listing Rules
Tribunals can list cases for hearing before the deadline for responding to the claim has passed and exclude claims dismissed on withdrawal from the public register of judgments. Old Rule 58 is amended to provide that notice of a final hearing may be given before the date that the response is to be presented under Rule 16, provided that the date of the hearing is no sooner than 14 days after that date. The Explanatory Memorandum says that the combined effect of the current rules on initial consideration of a claim and fixing a preliminary hearing means that tribunals cannot arrange a hearing date before receipt of the response form and the process of initial consideration which follows afterwards, which means that that it takes longer for cases to be listed, leading to delays for setting hearing dates. Allowing tribunals to list cases for a hearing on receipt of the claim form is intended to ensure maximum flexibility for tribunals to list hearings as quickly as possible.
Entering Judgments on the Public Register
Old Rule 67 says that a copy of a judgment or any written reasons shall be entered on the public register. This is amended so that cases dismissed on withdrawal under Rule 52 will no longer have to be included. The Explanatory Memorandum notes that ‘these judgments often contain little useful information about the claim or its circumstances and therefore have little use in providing information or insight that could be used to inform other cases’, and states that excluding them will reduce administrative cost.
Default Judgments
An employment judge can now issue a default judgment without a full hearing even where a preliminary hearing has taken place; making clear that a judgment can be reconsidered by any employment judge, not just the same judge who gave the original judgment; and amending the rules on witness orders to clarify that other parties should be notified in writing that the order has been made and the name of the person required to attend the hearing.
These changes will come into force on 8th October 2020.
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