Employment Tribunals – Learning from Lockdown

Employment Tribunals – Learning from Lockdown

Key Contact: Claire Knowles

Author: Daniel Evans

The Coronavirus Pandemic has affected all areas of life and the employment tribunal system is no exception. The President of the Employment Tribunals (England and Wales), Judge Barry Clarke recently participated in an online Q & A where he answered questions about how the tribunal system has responded to lockdown and the ongoing complications that COVID 19 has presented.

Lockdown

Judge Clarke confirmed that the immediate impact of lockdown was a massive growth in unheard claims due to the large number of hearings that were cancelled during the early lockdown period in Spring 2020. The tribunal system has now prioritised the hearing of these cases which means that any claims which have been issued since have to go to the ‘back of the queue’. In the worst pressed tribunals such as Central London and Croydon there are now delays of up to 2 years with newly issued claims being listed for hearing at the earliest in 2022.

Cloud Technology

On a more positive note, Judge Clarke noted that the lockdown has led to a huge acceleration in the use of the Cloud Video Platform which is a remote access system that enables hearings to take place through the internet. Judge Clarke confirmed that the Cloud system is now being used to hear even relatively complex claims. It can be used exclusively (where all of the hearing is conducted remotely) or as a hybrid hearing where some witnesses give evidence via the Cloud but some participants attend the tribunal in person. 

Judge Clarke’s assessment of the Cloud is overwhelmingly positive. Whilst the system cannot fully replicate a conventional courtroom it has proved itself a more than adequate substitute in the majority of cases. It offers considerable advantages such as a massive expansion in the physical capacity of the tribunal system and a reduction in the amount of travel necessary for participants.

Whilst there was a good deal of scepticism about the use of the Cloud in its early stage, industry feedback has been overwhelmingly positive, and even hardened sceptics have been won over.  Providing safeguards are built into the system to ensure that parties can object to the Cloud where its use is inappropriate, Judge Clarke considers that the Cloud is now a permanent feature of the tribunal system which will outlast the pandemic. 

What other plans do the Employment Tribunal have? 

To the extent that social distancing measures will permit, some in-person hearings will now begin although it is likely that hybrid hearings will be more common. This flexibility will permit the Employment Tribunal to both ensure it can comply with social distancing rules and ensure participants who have health concerns are still able to participate without unduly exposing themselves to risk of infection.

Comment  

The Employment Tribunal is currently focusing its efforts on maximising the number of hearings that can take place and is encouraging all parties to be open to utilising remote hearing technology where the Judge considers it in the interests of justice to do so. The Employment Tribunal is also currently reluctant to use remote hearing technology in more complex cases that involve multiple discrimination and/or whistleblowing complaints or in any case where the hearing is likely to last 5 days or more. It is therefore likely that more complex cases will suffer significant delays, either until social distancing measures allow the hearing to be heard in-person or when the Employment Tribunal is confident that remote hearing technology will not undermine its ability to serve justice on such matters. 

It is therefore unlikely that the Employment Tribunal will return to full operational capacity while continued public health guidance on responding to the pandemic requires the public to comply with social distancing measures. Even then it will be several months or even longer before the system can clear its current backlog of cases.

For advice or assistance with any Tribunal matters please contact our employment team. 

Claire Knowles – Partner

Mark Alaszewski – Associate

Adam McGlynn – Solicitor

Daniel Evans – Solicitor

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