Employment Tribunals - will this winter see a flurry of claims?

In these uncertain times, few of us would venture to predict what the future holds. Yet even allowing for the unusual circumstances, it is almost inevitable that the coming months will see employers receiving more Employment Tribunal (ET) claims.

Not only are economic conditions ripe for more claims to be brought about employment disputes, but measures are currently being taken to increase the capacity of ETs to deal with a backlog of cases. Employers should prepare for a spate of claims, potentially including multiple ones, together with shorter than expected notice of final hearings.

Delays, backlogs and pressures in the ET system

Almost all users of the ET system will in recent months have experienced delays or difficulties born of the Covid-19 pandemic. And little wonder – statistics from the Ministry of Justice reveal a backlog of some 45,000 cases awaiting hearing. With such a huge number of pending cases on their books, some ETs have understandably been struggling to cope.

To compound the problem, the number of ET claims is sure to increase as the government’s furlough scheme comes to an end, on 31 October 2020, and we start to see furlough-related claims coming through such as for unfair redundancy dismissals and deductions from wages. There are also likely to be increasing claims arising from workplace health and safety concerns related to Covid-19. This is in a landscape where unemployment is already growing - almost always a catalyst for an increase in employment disputes.

In short, the need to ensure that the ET system is running smoothly has never been more acute. Our recent article How is Covid-19 affecting Employment Tribunals? detailed some of the ways in which the ETs have been coping over the summer months. Autumn has seen the introduction of further measures designed to get the ET system moving.

New regulations aim to break ET logjams

The government has recently laid new legislation before Parliament, in the form of the snappily titled Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (the Regulations). These will amend the ET Rules of Procedure, with most of the changes coming into effect on 8 October 2020.

The Regulations provide for short-track cases (involving simple, money-based claims) to be listed for hearing more quickly. Notice of a final hearing in a short-track case can be given before the date on which the employer’s response to the claim is due to be presented, provided that the final hearing is listed for no sooner than 14 days later. This may mean that we go from the current situation where final hearings can be listed for many months away (even for simple cases) to one where, for certain claims, the employer has just a few weeks’ notice of a final hearing.

The upshot will be that, if parties wish to settle short-track cases, they will have to open a settlement dialogue very quickly. In addition, the Regulations encourage settlement by increasing the standard Early Conciliation period from one calendar month to six weeks (with no provision for extending the conciliation period further). This change will come into force on 1 December 2020.

One aspect of the Regulations which may concern employers is that they allow multiple claimants to use the same ET1 form if their claims give rise to common or related issues of fact or law, or it is reasonable for them to do so. The current situation is that two or more claimants can use the same form only if their claims are based on the same set of facts. Sadly, with the coming months likely to witness widespread redundancies, it is not hard to imagine this change encouraging groups of colleagues combining to submit their claims in a single application.

Greater flexibility for ET hearings

One of the Regulations’ stated aims is to increase the capacity for hearings. The Presidents of the ETs (for both England & Wales and Scotland) had already paved the way for this by issuing new Presidential Guidance designed to provide more flexibility around the way hearings are conducted during the Covid-19 pandemic. Among other measures, ET judges have been given the choice as to whether to conduct in-person, partly remote and wholly remote hearings.

Encouraging more remote (or partly remote) hearings appears to be the direction of travel, but the logistics of running such a hearing while still ensuring all the parties are fairly treated can be tricky. The Regulations make several small but welcome practical changes that are likely to make judges feel more comfortable in choosing to designate hearings as remote or partly remote.

The Regulations further address the need to increase the ETs’ capacity by permitting non-employment judges to sit as employment judges and allowing “legal officers” to carry out some of the background work which would otherwise be done by judges.

How we can help

Considered separately, the above changes may seem like tinkering around the edges. But considered globally and in context, they will tackle the blockages in the ET system and undoubtedly result in some employers’ inboxes filling up with claims in the not-too-distant future.

If your business requires support with the defence of ET claims, you may wish to consider using rockhopper, Lewis Silkin’s low-cost, fixed-fee HR support service. For more information or a quote, please contact Laura Farnsworth on 0207 074 8000 or laura.farnsworth@lewissilkin.com.