Do the new Employment Tribunal Rules 2020 do enough to reduce bureaucracy and increase capacity?

Background to reform

The Government has been considering reform and modernisation of the ET system since 2016. In February 2017, it confirmed that it would make certain key changes to digitalise the claims process, delegate a broad range of routine tasks from judges to caseworkers and tailor the composition of Employment Tribunal panels to the needs of the case.

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 SI 2020/1003 (the 2020 Rules) were laid before Parliament on 17 September 2020 and amend the ET Regulations, ET Rules and also the Early Conciliation (EC) rules set out in Schedule 1 to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254.

The majority of the changes came into force on 8 October 2020.

The new Employment tribunal rules and the practical implications

The objective of the 2020 Rules is to increase Employment Tribunals’ capacity to hear claims and allow for more flexibility in remote hearings which is particularly important during the ongoing COVID -19 pandemic.

However, the latest quarterly statistics for Employment Tribunals show an 18% increase in single ET receipts and an increase in outstanding caseload of 31% during the period April to June 2020. The outstanding caseload level is in fact at its highest for more than ten years.  The number of claims look set to rise even further in view of the impending end/winding down of the Coronavirus Job Retention Scheme (CJRS), better known as the furlough scheme, and the higher levels of unemployment and redundancies. Will the amendments be enough to increase Employment Tribunals’ capacity to hear the increasing number of claims or will they potentially cause further delays? The key changes are as follows:

• Under the 2020 Rules, a range of non-Employment judges will be permitted to sit as Employment judges to increase judicial capacity in Employment Tribunals. The judge must be nominated by the Senior President of Tribunals and the President, who is responsible for the panel the judge will act as a member of, must consent to the judge acting in a particular case. This cross deployment of judges is intended to increase the number of claims that can be heard but could this also lead to more decisions being appealed? Judges who come from other courts may have a different perspective to Employment judges, and we may see some unusual decisions being reached.
• The concept of Legal officer has been introduced and they will be allowed to carry out a range of functions, subject to authorisation by the Senior President of Tribunals. Legal officers are currently being recruited and pending their appointment, in the short term at least, there may be little progress in dealing with the backlog of claims. Legal officers’ functions include determining whether a claim form has a substantive defect under rule 12 of the Tribunal Rules and determining whether an extension of time should be given for a response under rule 20 of the ET Rules. However, where such a decision has been made by a Legal officer, either party may apply within 14 days for the issue to be considered afresh by an Employment judge. So whilst this may be a welcome move, it potentially has the opportunity to cause further delays in the ET process as decisions could end up be referred back to an ET Judge to determine.
• The 2020 Rules will provide wider scope for parties to deal with multiple claims or responses on one form where the claims “give rise to common or related issues of fact or law or if it is otherwise reasonable for their claims to be made on the same claim form”. Currently, two or more claimants may use the same claim form if their claims are “based on the same set of facts”. This change will be helpful for advisers in saving time in the preparation of claims forms or responses.
• The 2020 Rules will also provide wider discretion for Employment Tribunals to accept claim forms despite certain errors. The 2013 Rules are silent on how an Employment Tribunal should proceed if the claim form contains an incorrect ACAS Early Conciliation (EC) number, as opposed to containing no EC number at all. Under the 2020 Rules a claim form must be referred to an Employment judge for consideration but the claim will not have to be rejected if the Employment Judge considers that the claimant has made an error in relation to the EC number and it would not be in the interests of justice to reject the claim. Additionally, Employment judges will be permitted to accept a claim form despite ‘an error’ in relation to a name or address, not only where there is a ‘minor’ error as was the case previously. These changes could be helpful in avoiding delays at the outset of proceedings.
• Employment Tribunals will also now be able to list a final hearing before the deadline has passed for the presentation of a response, provided that the hearing date is no sooner than 14 days after the response is due. Currently, Employment Tribunals cannot arrange a hearing date before receipt of the response form and going through the process of initial consideration, this means that it takes longer for cases to be listed, leading to delays for setting hearing dates. Allowing Employment Tribunals to list cases for a hearing on receipt of the claim form is intended to ensure maximum flexibility for Employment Tribunals to list hearings as quickly as possible. That’s the theory. The reality may be somewhat different. As mentioned above, there is a considerable backlog of outstanding claims at the moment and there are reports that in some parts of the country the parties are waiting 12 to 18 months for a final hearing date where the case is complex and several days are needed for the hearing.
• There will also be an amendment to the EC rules to change the default EC period from one calendar month to six weeks which will come into force on 1 December. Although the extension will give employers more time, there will no longer be any ability to extend the period by consent (previously it was possible to extend by up to 14 days). This means that employers will need to act promptly when they learn of a claim because there will be no scope to extend the EC period.

With an anticipated increase in pandemic-related Employment Tribunal claims as well as claims arising from the winding down and imminent closure of the furlough scheme, the 2020 Rules could not have come at a better time. It will be some time however before we are able to establish how effective the 2020 Rules have been in addressing the backlog of claims and increasing the capacity of the Employment Tribunal.