Recent statistics on the caseload of employment tribunals are startling, revealing various trends that the government attributes to the effects of the Covid-19 pandemic:
- a backlog of some 37,000 cases awaiting hearing – more than the peak level reached in 2009-10 following the financial crisis;
- 10,318 single tribunal claims were made between April and June this year, the highest level seen since 2012-13; and
- the number of claims disposed of by tribunals in April-June was down by 31 per cent on the equivalent period in 2019.
The number of tribunal claims being lodged is only likely to grow in the coming months. There has already been an upsurge in proposed redundancies, with headlines putting the likely figure at around 500,000. In addition, the closure of the government’s furlough scheme on 31 October will unfortunately, but inevitably, lead to further job losses.
As a result, we are likely to see an increase in claims of unfair dismissal, unpaid wages and failure to correctly inform and consult over proposed redundancies – not to mention further tribunal litigation triggered by the impact of Covid in the workplace, such as health and safety claims.
Recognising that the tribunals need more support, the government has introduced regulations that came into force on 8 October 2020: the snappily titled Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020.
These regulations make several changes to the way that tribunals operate. For example, they provide for short-track cases (involving simple, money-based claims) to be heard more quickly. It was already common for tribunals to send out notice of a preliminary hearing when notifying the employer of a claim. But such cases can now be listed for a final hearing before the deadline for the employer to respond to the claim (provided that the hearing is scheduled for at least 14 days later).
The new regulations also encourage settlement by increasing the standard early conciliation period from one calendar month to six weeks, a change that will come into force on 1 December 2020. Clearly, if cases can be settled at an early stage this will help reduce the burden on the system.
Earlier this year, the presidents of the tribunals (for both England and Wales and Scotland) issued guidance designed to provide greater flexibility around the way hearings are conducted during the Covid pandemic. Among other measures, employment judges have been given the choice of whether to conduct an in-person, partly remote or wholly remote hearing.
The new regulations take this further by seeking to remove some of the practical difficulties involved in running remote or partly remote hearings. For example, they allow for witness statements to be inspected by the public at a time other than during the remote hearing and provide that witnesses must be seen by the public only ‘so far as practicable’.
In addition, the regulations address the need to increase the tribunals’ capacity for hearings by allowing non-employment judges to sit as employment judges and by allowing ‘legal officers’, who are not judges, to carry out a range of functions such as determining applications for extension of time to tribunal deadlines.
Taken individually, the changes introduced by the regulations may appear relatively modest and unremarkable. Collectively, however, they have the potential to make a material contribution towards breaking the ever-growing logjam afflicting the tribunal system.
Laura Farnsworth is head of rockhopper, Lewis Silkin’s employment tribunal defence service