In depth

Updated guidance on the new tribunal process

Gateley Legal

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Just days after it was reported that the backlog of cases in the Employment Tribunal had reached a worrying 45,000, the Government has published new amending Regulations to speed up a number of Tribunal processes and reduce the administrative burdens facing Employment Judges. 

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 are aimed at helping the Employment Tribunal system cope in the coming months when it is expected that the growing number of redundancies will lead to even greater numbers of claims being lodged.

What are the new amending Regulations?

The new Regulations introduce a variety of different measures to help the Employment Tribunal meet the increased demands. Some of the most important are in relation to the ACAS Early Conciliation procedures. From 1 December strict rules regarding references to the Early Conciliation number being accurately recorded in the claim form will be relaxed. The Tribunals will also be allowed greater flexibility around accepting claims where there are other errors in relation to the names of the parties. Whilst this may not reduce the number of claims it will allow Employment Judges more opportunity to focus on substantive matters rather than technical formalities.

It does still recognise that Early Conciliation process can be valuable as it gives the parties an opportunity to settle claims at an early stage saving both the cost and time of a case proceeding to a full hearing at the Employment Tribunal. In this respect, the standard one-month conciliation period is being extended to six weeks. The time spent in conciliation will still extend the time limit within which the claim has to be submitted.

In respect to the claim process, it will be made easier for two or more claimants to make their claim on the same ET1 form if their claims give rise to related issues of fact or law. Similarly, respondents will be able to use the same ET3 form reducing the administrative burdens for both the Tribunal and its users. 

The Tribunal will also have greater powers to allocate hearing dates as soon as a claim is received rather than waiting for a response to be received and representations being made. It will also gain more powers to issue judgments in default for example where a response has not been received.

Changes to the rules on the availability of witness statements during hearings and the making of witness orders also reduce administrative burdens.

The rules around reconsideration of judgments are changed to allow any Judge to look at the decision again rather than it being reserved only to the one who made the original decision.  Employment Judges will also be helped out by the fact that powers have been introduced to delegate more responsibility for Legal Officers to make administrative decisions and Judges from other Courts and Tribunals may also be drafted in to help hear the cases and so reduce the backlog.  

Final thought

Lastly, in relation to the publication of Employment Tribunal judgments online, there is an important change in that this will no longer apply to judgments for withdrawn and dismissed claims. It had been a requirement that every judgment was published even where the claim had been settled. This amendment will be welcomed by employers and claimants who may not have wished to have their names published on the public website even where little detail of the claim was included. Obviously, it will also reduce the administrative burden for the Tribunal too. 

For more information on the updated guidance, please contact the expert listed below. 

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