Time for change? Reforms to the Employment Tribunal rules

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Last week, Business Minister Paul Scully introduced in Parliament several changes to the existing Employment Tribunal procedural rules. The reforms are intended to boost Employment Tribunal capacity, providing “further flexibility to the system to ensure workers and businesses receive quick and fair resolutions to disputes”.

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 will amend existing rules in two tranches.

Changes coming into effect on 8 October 2020 include:

  • legal officers (who don’t need to be legally qualified) will be permitted to undertake some tasks currently performed by employment Judges, including accepting or rejecting claim forms, extending time to respond to a claim, granting permission for claim forms and responses to be amended where parties agree, extending time to comply with case management orders, and making orders for additional information about a claim or defence;
  • non-employment Judges will be able to act as employment Judges, if certain criteria are met;
  • where reasonable, multiple claimants and respondents will be allowed to use the same forms;
  • greater flexibility from Employment Tribunals in how minor errors are handled, for example, where the early conciliation number on the claim form is not the same as the early conciliation number on the ACAS early conciliation certificate; and
  • a reduced need for physical hearings, as a result of greater flexibility over virtual hearings.

From 1 December 2020, changes will be made to ACAS early conciliation. This is the mandatory dispute resolution process a prospective claimant must go through before they can submit an Employment Tribunal claim. Changes include:

  • the default one-month early conciliation period, with a potential two-week extension, will be increased to six weeks in all cases; and
  • ACAS will also have greater flexibility in how it handles minor errors. At any point during the six-week period, it will be able to contact prospective claimants to correct errors in an early conciliation form or obtain missing information (although this is not mandatory).

The announcement of these timely reforms was preceded by Ministry of Justice data showing that there were more than 45,000 Employment Tribunal claims outstanding by 23 August 2020. This backlog has grown weekly since the start of lockdown and, overall, has increased by 26% since the beginning of March. The number of claims presented to the Employment Tribunal is expected to rise as the furlough scheme ends next month, further adding to the backlog. Whether Minister Scully’s reforms will succeed in providing faster outcomes against this backdrop remains to be seen. Either way, it occurs to me that introducing greater flexibility to use virtual hearings to the Employment Tribunal rules indefinitely indicates that the influence of Covid-19 on our working lives is here to stay, even beyond the pandemic.