By Lelde Libeka from Irwin Mitchell’s Employment team
In December 2020, changes were made to the existing Employment Tribunal Rules of Procedure (“the 2020 Regulations”) with a view to increase capacity in the Employment Tribunal system. These changes aim to clear the growing backlog of claims faced by the Tribunal by allowing more flexibility for remote hearings.
During this article, we explore the amendments introduced by the 2020 Regulations and provide some useful guidance on the practical application of the 2020 Regulations before starting the proceedings and during the case management process.
1. Extension of the ACAS Early Conciliation period
When a prospective claimant wants to make a Tribunal claim, they first have to notify the Advisory, Conciliation and Arbitration Service (“Acas”) by completing a form to tell Acas that they intend to make a claim. Acas will then try to help the prospective claimant and respondent to reach an agreement before the claim is lodged in the Tribunal. This process is called Early Conciliation. Before the changes were introduced by the 2020 Regulations, the Early Conciliation process lasted up to 4 weeks with a possible extension for a further two weeks.
Under the 2020 Regulations, the Early Conciliation period has been extended from one month to 6 weeks, removing the power to extend this period further. The change will therefore give parties the maximum period available for the Early Conciliation process from the start.
It should be noted that this, however, does not affect the “stop the clock” provision, which will mean that the time limit for making a claim to the Tribunal is automatically “paused” during the Early Conciliation period. If a resolution has not been reached during the six weeks of the Early Conciliation process, ACAS will issue an Early Conciliation Certificate which will then allow the claimant to lodge a claim in the Tribunal.
2. Corrections on ACAS Early Conciliation Forms
Up until the introduction of the 2020 Regulations, ACAS could either reject the form submitted by a prospective claimant at the start of the process if the information on the form was missing or had errors or continue using the form during the Early Conciliation process with the information which was stated incorrectly.
With the changes introduced by the 2020 Regulations, ACAS can now contact the person wishing to bring the claim in the Tribunal to ask them to provide the information which is missing and/or to correct errors on the form during the period of Early Conciliation.
The importance of this change is that it provides a safety net to prospective claimants, where any errors can be corrected prior to the issuing of the Early Conciliation Certificate and thus avoid for the incorrect information to subsequently appear on the ET1 form.
3. Dealing with errors in ACAS Early Conciliation Certificates
Previously, a claim form would be automatically rejected by a judge, if there were any errors made on it in respect of ACAS Early Conciliation numbers. The ACAS Early Conciliation number is assigned to each ACAS Certificate once the Early Conciliation process has come to an end. However, this approach presented a risk to claimants because by the time they would be informed about their claim form being rejected due to this error, the deadline to present their claim to the Tribunal could well have passed.
However, with the new change brought in by the 2020 Regulations, ET1 forms which include a wrong ACAS Early Conciliation number can still be accepted if “a Judge considers that the claimant made an error in relation to an early conciliation number, and it would not be in the interests of justice to reject the claim” under Rule 12(2ZA) of ET Rules.
4. Amendments to ET Procedural Rules in relation to claim form and response
Previously multiple claimants or respondents could only be included on one form if it was based on the same set of facts. This has now been expanded under the 2020 Regulations, which now allows adding multiple claimants or respondents on the same form “if they give rise to common or related issues of fact or law or if it is otherwise reasonable for the claims or responses to be made on the same form”, possibly saving time for the parties.
Further, the 2020 Regulations have also provided the Tribunal with the option to list the final hearing date before the ET has even received a response form, as long as the final hearing is not earlier than 14 days after the date of the response. In practice, it allows the Tribunal to list something very quickly after the submission of pleadings in relation to very simple claims. Conversely, if something gets listed under this rule it is a reminder to both the claimant and the respondent to be aware and be proactive to contact the Tribunal if they consider that this listing is premature and ask for the case to be listed for the Preliminary Hearing instead of the final hearing.
5. Amendments to the ET Procedural Rules on remote hearings
There have been further amendments introduced by the 2020 Regulations in respect of hearings conducted remotely. Under these changes, the Tribunal can now inspect witness statements other than during the course of a final hearing, which is the usual practice for in-person hearings.
In circumstances where the Tribunal considers it to be just and equitable to conduct hearings by electronic communication (including telephone), what is most important is that the parties and members of the public can hear what the Tribunal hears and see what the Tribunal sees only in “so far as practicable”. This additional wording has been included to recognise the difficulties which can be caused due to the video software and, therefore, seeing witnesses is sometimes not practicable.
Prior to the COVID pandemic the Tribunal system was faced with a lack of financial resources resulting in significant delays and backlog of cases. The additional surge of tribunal cases and social distancing measures at tribunals as a result of the COVID pandemic led to a further increase in the backlog with 36,616 outstanding cases waiting to be heard in June 2020.
The introduction of the 2020 Regulations and switch to remote hearings aim to bring relief to the overloaded system by providing the parties with more time to resolve their disputes pre-proceedings and allow for the necessary corrections to be made during Early Conciliation and after a claim has been lodged. Furthermore, the amendments to ET Procedural Rules on remote hearings introduced by the 2020 Regulations aim to facilitate a smooth running of the process of virtual hearings and access to justice. It seems inevitable that virtual hearings will now be an important feature to deal with the overloaded system and parties will need to adjust to the changes introduced by this new method of managing proceedings.