Tribunal costs orders – claimants beware
On 14 September 2020, the President of the Employment Tribunals, Judge Barry Clarke, issued Presidential Directions on remote hearings and the principle of open justice, essentially describing how online hearings will work and acknowledging that, given the disruption caused by the COVID-19 pandemic, there is a need for Employment Tribunals to conduct remote hearings in greater numbers.
Also last week, the Government put before Parliament, changes to the existing Employment Tribunal Rules of Procedure and the rules regarding the ACAS Early Conciliation (“EC”) procedure in an attempt to address the issue. The changes are designed to “reduce unnecessary bureaucracy” in the Employment Tribunal system, allow more flexibility for remote hearings and to increase Employment Tribunals’ capacity to hear claims, thereby clearing the backlog.
So what is about to change? Here’s a summary of the key points:
1. A range of non-employment judges (for example, High Court, district or circuit judges) will be able to sit as employment judges (i.e. adjudicate employment claims), provided certain conditions are met.
2. “Legal Officers” (to be appointed by the Lord Chancellor) will have powers – to be set out in a Practice Direction - to make certain determinations currently reserved for Employment Judges. These may include, for example, determinations:
3. Parties may, within 14 days of a determination being made by a Legal Officer, apply to have that issue considered again by an Employment Judge.
4. The circumstances in which multiple claims/responses may be in included in one form will be expanded. Currently, two or more claimants may use the same claim form if their claims are “based on the same set of facts”. Under the new rules, multiple claimants will be able to use the same claim form if their claims “give rise to common or related issues of fact or law, or if it is otherwise reasonable” to do so. Similar provisions will apply in relation to multiple responses being included on the same form.
5. The Tribunal will be able to list cases for a hearing before the date that it receives the response/Form ET3, provided that the date set for the hearing is no earlier than 14 days after the date the response/Form ET3 is due. The idea behind this is to give Employment Tribunals flexibility and to facilitate the listing of hearings as soon as possible.
6. Claims will not have to be rejected if the EC number on the claim form does not match that on the EC certificate in circumstances where the Employment Judge forms the view that the Claimant made a mistake in relation to the EC number and it would not be in the interests of justice to reject the claim.
7. If a hearing takes place remotely, witness statements may be available for inspection by the public “otherwise than during the course of the hearing”. The current rules require witness statements to be available for inspection during the course of the hearing.
8. During remote hearings, the requirement will be that parties and members of the public should be able to hear what the Tribunal hears and, “so far as practicable”, see any witnesses as seen by the Tribunal. The current rules require that the parties and members of the public hear and see any witnesses as heard and seen by the Tribunal, so this change will provide some flexibility in that regard to facilitate remote hearings.
9. Where a response to a claim has not been filed, or is rejected, or the claim is not contested, Employment Judges will be able to issue default judgment on all or part of that claim (that is, decide the matter based on the papers and information before them, without a hearing), even where a preliminary hearing has taken place.
10. Cases dismissed on withdrawal will no longer need to be included in the public register of judgments.
Currently, when an individual wants to bring a claim before an Employment Tribunal, they must first go through the mandatory ACAS EC procedure and obtain an EC certificate confirming that they have done so. The reference number on the EC certificate must then be stated on the claim form when the claim is lodged (confirming that the required procedure has been complied with).
Although the parties are not required to engage in EC, if they do decide to engage in this process, the EC period is one calendar month, which may be increased to six weeks if the conciliation officer believes there is reasonable prospect of a settlement being reached in that time. The effect of this is to “stop the clock” on the period within which the claimant must bring a claim in order to give the parties an opportunity to explore settlement.
From 1 December 2020, the EC period will be set at six weeks and there will be no scope for this to be increased. The change will therefore give parties the maximum period available to utilise the EC process from the outset.
Whilst the changes outlined above are welcome, the extent to which they will be effective and how they will operate in practice remains to be seen. There is no doubt that urgent action is required to address the crisis faced by Employment Tribunals and it will be interesting to see to what extent the running of claims will change to adapt to the current times (particularly with regard to remote hearings) and the volume of claims submitted.
If you have any questions or concerns regarding the topics covered in this blog, please contact any member of the Employment Law team.
Before joining Kingsley Napley, Özlem was a Tutor and Team Leader at BPP University’s Law School, teaching on the Legal Practice Course. She taught the Employment Law, Business Law & Practice, Corporate Finance and Equity Finance modules of the course, as well as the skills modules of Interviewing & Advising and Professional Conduct & Regulation. She also supervised a number of Masters level projects on employment law related topics.
Prior to teaching, Özlem had over ten years’ experience working as a solicitor in private practice specialising in employment law (first having trained and qualified at Slaughter and May and then working at Fox Williams LLP).
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