New Tribunal Rules

New Tribunal Rules

Key Contact: Claire Knowles

Author: Rebecca Mahon

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 were laid before Parliament yesterday (17 September 2020). The majority of the new rules come into force on 8 October with a certain number of provisions (relating to ACAS early conciliation) coming into force later (1 December 2020).

What’s changing on 8 October?

From 8 October 2020, “legal officers” will be allowed to carry out some of the tasks currently performed by employment judges, including:

  • considering acceptance or rejection of claim forms
  • extending time for an ET3 or for compliance with case management orders
  • giving permission to amend claims and responses when both parties consent
  • ordering further information
  • dismissing claims by consent upon withdrawal

Legal officers do not need to be legally qualified and will not decide substantive matters. Amidst reports that the backlog of claims yet to be processed by the Employment Tribunal hit 45,000 in August 2020 and that cases in the Manchester Employment Tribunal are being listed for 2022, it is hoped that permitting legal officers to carry out these tasks will increase efficiencies.

In addition, the judiciary will be able to arrange for non-employment judges to hear certain cases at the Employment Tribunal, provided that:

  • the judge is nominated by the Senior President of Tribunals; and
  • the President who is responsible for the relevant panel consents to the judge acting on that panel in a particular case.

Again, it is hoped that this will increase efficiencies and reduce unnecessary delays.

The new rules provide for greater flexibility for hearings to take place virtually, which ties in with an £80million investment in HM Courts and Tribunal Service to increase staff and technical capabilities, following the coronavirus pandemic.

Finally, and again as a measure to increase efficiencies, the rules on when multiple claimants/respondents can use the same claim/response form have been expanded  to avoid multiple certificates and time limits in what is essentially the same dispute.

Amendments to ACAS conciliation rules (1 December 2020)

From 1 December 2020,  the early conciliation window (which is currently 4 weeks, with the option to extend by a further 2 weeks) will be 6 weeks in all cases. The ability to extend the early conciliation period further has been withdrawn. There are further amendments which encourage ACAS to contact claimants at any time during the early conciliation process to correct errors or obtain missing information.

Comment

Whilst the amendments which have been made to increase efficiencies are welcome, we question whether increasing the early conciliation period to 6 weeks in all instances is good news for employers. On the face of it, it provides a greater opportunity for settlement outside of a formal Tribunal process.  However, the employee will now potentially have nearly 6 months after the event to bring their claim against an employer (3 months, plus a 6 week early conciliation period, plus a further month to bring a claim). Not only does this present potential evidential issues, particularly in light of the GDPR principle of data minimisation, but it also lengthens the period of uncertainty for employers who want to move on.

For more information about the employment tribunal process, please contact our employment team.

Claire Knowles – Partner

Mark Alaszewski – Associate

Rebecca Mahon – Solicitor

Adam McGlynn – Trainee Solicitor

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