The UK government is amending the employment tribunal rules to help mitigate the disruption caused by the global coronavirus pandemic. We take a look at the key changes, most of which come into force on 8 October 2020.
Increased capacity and speed
Non-employment judges will be able to sit as employment judges in order to increase capacity in employment tribunals. The system was already struggling before coronavirus hit, with some claimants waiting more than a year for a final hearing. Inevitably, since March the backlog has increased. Allowing for a range of judges to sit in the employment tribunal, subject to certain consents being given prior to appointment, will help get claims moving faster. Notice rules will also change to speed up the process of setting hearing dates. Notice of a final hearing may be given before the date that a response is required, as long as the hearing is no sooner than 14 days after that date.
Expansion of legal officer duties
The new rules shift certain duties from employment judges to legal officers (subject to the change in functions being authorised by the Senior President of Employment Tribunals).
The Senior President may authorise legal officers to determine various applications including:
- to extend time for a response;
- to extend time to comply with a case management order;
- to amend claims/responses;
- requesting additional information about another party’s claim or defence;
- for postponement of a hearing made more than seven days before the hearing; and
- to determine whether to dismiss a claim on withdrawal.
Unsurprisingly, parties will be able to challenge a legal officer’s decision, by applying in writing for an employment judge to consider the matter afresh.
At an in-person hearing, witness statements must only be available, during the course of the hearing, for inspection by members of the public attending the hearing. Under the updated rules, where the hearing is being conducted remotely, statements may be made available other than during the course of the hearing. The rules will also introduce flexibility so that parties and members of the public need only be able to see witnesses “so far as is reasonably practicable”, rather than it being a requirement.
Judges will have more flexibility to accept claim forms despite errors in names, addresses or early conciliation numbers and to reconsider rejected claims or responses. Any judge will be able to reconsider a rejected claim or response, rather than the judge who originally rejected it being the only one who can do so. Cases that are dismissed on withdrawal will be exempt from the requirement to record all judgments in the Register.
A judge will be able to issue a default judgment without a full hearing, even where a preliminary hearing has taken place, if the preliminary point determined at the preliminary hearing was uncontested or there was no response. We expect this power will be rarely exercised.
From 1 December 2020, the early conciliation period will be six weeks instead of one calendar month. Conciliators will no longer be able to extend the early conciliation period.
As with many areas of life, the pandemic has prompted an acceleration of changes that would otherwise have happened at a much slower pace. Parties and practitioners alike will welcome the introduction of greater flexibility in some aspects of the tribunal rules. Time will tell how they react to the use of non-employment judges and delegation of powers to legal officers.