The Government has laid new Regulations (The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 SI 2020/1003) before Parliament with a view to increasing employment tribunals’ capacity to hearing claims.
These significant changes provide for an improved case management of claims with some administrative rules having been simplified. The Regulations intend to provide, amongst other things, more flexibility over judicial resources, by allowing legal officers to carry out delegated administrative judicial tasks, and for other court and tribunal judges to sit in the employment tribunal should the need arise.
Amendments made to the Tribunal Rules
All Employment Tribunal users need to be aware of the following important changes, coming into force this autumn. The Government introduced The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 SI 2020/1003 into Parliament on 17 September 2020, which amend the Tribunal Rules as set out in Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 SI 2013/1237, (“the 2013 Regulations”)and the Early Conciliation (“EC”) rules as set out in Schedule 1 of the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254.
Access to more judges (Tribunal Rule 8)
In order to increase judicial capacity in employment tribunals, the proposed amendment to Reg. 8 of the 2013 Regulations will allow for a range of non-employment judges to sit as employment judges. These include judges of the First-Tier Tribunals and Upper Tribunal, High Court judges, deputy High Court judges and circuit judges. This is arguably the most controversial of the changes proposed, despite the fact that in the ordinary courts, judges from different backgrounds and practice areas have long been able to judge cases involving a different body of law.
New functions for legal officers (Tribunal Rules 10A and 10B)
In addition to this, a new Reg. 10A will be inserted into the 2013 Regulations to allow legal officers to carry out a range of functions, subject to authorisation by the Senior President of Tribunals in a practice direction. The new Reg. 10B also lists the types of functions that may be authorised, including:
• Determining whether a claim form has a substantive defect under rule 12 of the Tribunal Rules.
• Determining applications for extension of time for responding to a claim or complying with a case management order.
• Determining applications for postponement made more than 7 days before the hearing and to which all the parties consent.
• Dismissal of a claim following a withdrawal.
Reg. 10A(2) stipulates that a party may apply within 14 days of a determination being made by a legal officer for the issue to be considered afresh by an employment judge.
Changes affecting remote hearings (Tribunal Rules 44 and 46)
In response to the COVID-19 pandemic and to facilitate remote hearings, Tribunal Rules 44 (inspection of witness statements) and 46 (hearing by electronic communication) will be amended. Currently, rule 44 requires witness statements to be made available to members of the public attending the hearing. The proposed amendment to the rule will mean that where a hearing is conducted by electronic communication, inspection may be “otherwise than during the course of the hearing”. Similarly, rule 46 in its current form, requires that in a remote hearing the parties and members of the public must be able to hear what the tribunal hears and see any witnesses as seen by the tribunal. The amendment to the rule will mean that parties and members of the public can hear what the tribunal hears and, so far as practicable, see any witness as seen by the tribunal.
Changes making it easier for multiple claimants (Tribunal Rule 9)
Rule 9 of the Tribunal Rules currently allows 2 or more claimants to make their claims on the same claim form, if their claims are ‘based on the same set of facts’. The amendment will allow multiple claimants to use the same claim form if they ‘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’. A corresponding amendment will be made to rule 16 to allow for multiple responses to the same claim form.
Greater flexibility to deal with errors in early conciliation claim numbers on claim forms (Tribunal Rule 12)
Amendments will also be made to rule 12, which prescribes the circumstances in which a claim form must, or may, be rejected. In relation to EC, rule 12 permits the rejection of a claim form, or part of one, where there are deficiencies in relation to the evidence that the tribunal requires in order to demonstrate that the claimant has taken the necessary steps in respect of EC before commencing proceedings. The Rule also requires a claim to be rejected if the claim form contains the incorrect EC number, however a further amendment to the rule will mean that if the EC number on the claim form is not the same as the EC number on the EC certificate, but the employment judge considers that the claimant has made an error and that it would not be in the interest of justice to reject the claim, then the claim will not be automatically rejected.
Rule 12(2A) currently permits the employment judge to accept a claim form despite ‘a minor error’ in relation to a name or address. As amended, the rule will allow for the claim to be accepted where there is ‘an error’, and not just a ‘minor’ error.
Earlier listing of initial hearings (Tribunal Rule 58)
Rule 58 will be amended to provide that notice of a final hearing may be given before the date that the response is to be presented under rule 16, provided that the date of the hearing is no sooner than 14 days after that date.
The Explanatory Memorandum states that the combined effect of the current rules on initial consideration of a claim, and fixing a preliminary hearing means that tribunals cannot arrange a hearing date before receipt of the response form, and the process of initial consideration which follows afterwards. Allowing for tribunals to list cases for a hearing on receipt of the claim form will increase flexibility to list hearings as quickly as possible and avoid delays.
Additional amendments to Tribunal Rules
• An employment judge can issue a default judgement without a full hearing, even where a preliminary hearing has taken place.
• A judgement can be reconsidered by any employment judge, not just the same judge who gave the original judgement.
• Amending the rules on witness orders to clarify that other parties should be notified in writing that the order has been made and the name of the person required to attend the hearing.
• Rule 67 currently provides that a copy of any judgement and of any written reasons for a judgement shall be entered onto the register. This will be amended so that cases dismissed on withdrawal under rule 52 will no longer have to be included; the reasoning behind this being that this will reduce administrative costs.
All of the amendments as noted above will come into force on 8 October 2020.
Early Conciliation Rules Amendments
Extension of automatic EC period from a calendar month to 6 weeks.
Under rule 6, the conciliation officer is under a duty to endeavour to promote a settlement for a period of one calendar month from the date on which the claimant first contacts ACAS. An extension of time is possible where the conciliation officer considers that there is a reasonable prospect of achieving a settlement. This will be amended so that the Early Conciliation period is 6 weeks, instead of one calendar month, and the power to extend is removed.
This amendment will come into force on 1 December 2020.
This summary and brief commentary on the changes to the Employment Tribunal and Early Conciliation Rules was prepared by Naomi Latham and Merrill April of CM Murray LLP. If you have any queries concerning employment tribunal process or procedures, please contact either of us or any other member of the employment team at CM Murray.