Changes to employment tribunal and Early Conciliation rules

The snappily titled Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 were published on 18 September which were needed due to the backlog of cases as a result of COVID-19. The aim of these regulations is to improve capacity and see an earlier conclusion to matters progressing through the tribunal system as well as reducing the administrative burden on employment judges.

Some measures came into force on 8 October 2020 whereas others will be implemented on 1 December 2020.

In the Memorandum to the Regulations, the government states:

 “The employment dispute resolution system faces significant pressures from the impact of both Covid-19 and an increase in employment tribunal claims following the abolition of fees in 2017. In addition to this case load, social distancing measures have affected the employment tribunals’ ability to manage claims, adding further delays.

The impact of Covid-19 has also highlighted areas of the tribunal rules where there needs to be more flexibility to allow cases to be handled in a proportionate way.

The measures in this instrument are intended to reduce the administrative burden to the system and ensure that workers and businesses can resolve their disputes swiftly, rather than through costly litigation over technical procedural matters.”

What came into force on 8 October 2020?

• Employment tribunals will have more discretion in handling errors on claim forms (such as an incorrect EC reference number).
• Legal officers (who do not need to be legally qualified) will be able to carry out some tasks currently undertaken by Employment Judges including:

–              considering acceptance or rejection of claim forms

–              extending time for an ET3 or for compliance with case management orders

–              giving leave to amend claims and responses (where both parties consent to the amendment).

–              ordering further information

–              dismissing claims by consent upon withdrawal

• Non-employment Judges can be appointed to the employment tribunal system if they meet certain criteria.
• Currently, multiple claims can be made on the same claim form if they are ‘based on the same set of facts’ but this will be widened to read that this can be done where the claims ‘give rise to common or related issues of fact or law or if is otherwise reasonable for their claims to be made on the same claim form’ . There is also a similar amendment allowing multiple respondents to respond using one ET3.
• Hearing dates will be allocated as soon as a claim is received rather than waiting for a response and representations to be made.
• Changes to tribunal procedure rules to accommodate the increased use of remote hearings (public attendance at an electronic hearing will only be guaranteed ‘so far as is practicable’ and public inspection of witness statements at electronic hearings can take place outside the course of the hearing).

What comes into force from 1 December 2020?

• The ACAS Early Conciliation period will be extended from one month (with an optional 2-week extension) to 6 weeks for all cases. This is intended to make timescales much clearer for the parties
• ACAS will be able to correct errors or obtain information missing from the Early Conciliation form during the conciliation period.

Citation can help at every step of the way

These are challenging times, especially for business owners and employers. Our team of Employment Law experts are on hand provide you with their guidance and advice based on latest government updates to help you work through this difficult period.

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