Recent reforms to the Employment Tribunal system and a move towards virtual hearings are intended to boost hearing capacity and access to justice. We consider the developments to the pre-existing approach and what this means for employers.
Justice in slow motion?
The Employment Tribunal process before COVID-19 could hardly be described as a quick process with some claims taking a year or more to reach a final hearing leaving the parties in limbo for substantial periods of time. It seems such delays have been compounded by COVID-19. As at the end of June 2020, there were 36,616 outstanding cases in the Employment Tribunal system awaiting a hearing, a significant increase from March 2020 due largely to the impact of the pandemic.
Measures adopted by the Employment Tribunals during the UK lockdown saw in-person hearings, which should have taken place between 23 March and 26 June 2020, being postponed. Postponed final hearings were instead converted to a telephone preliminary hearing for case management, but the final hearings were not necessarily re-arranged at that time. Some cases are still without a final hearing date, despite being lodged almost a year ago.
The Employment Tribunals now have the unenviable task of juggling this backlog of cases and re-listing any postponed hearings as well as listing hearings for the plethora of new claims that we are seeing coming through the system. We understand that priority is being given to postponed hearings as you might expect. It is difficult to predict when hearings may be listed. For example, in Glasgow we have had hearings listed for as early as this year, whilst Cambridgeshire and Watford face potential delays until 2022. Parties should therefore be prepared to face a substantial wait before their claim is heard.
Employers facing an Employment Tribunal claim will need to bear this in mind and plan ahead. Witnesses might move on (voluntarily, or, as a result of restructures) and in any event, memories will undoubtedly fade. Employers should consider how they might stay in touch with potential witnesses or consider taking their witness statement at an early stage of the proceedings.
The lack of buoyancy in the jobs market (particularly in certain sectors) might also lead to higher requests for loss of earnings from Claimants (subject to any statutory cap of course) or unrealistic expectations for settlement.
We expect that the demands upon the Employment Tribunal will only increase. The Employment Tribunal expects the number of claims to surpass 40,000 by Autumn in line with the closure of the Coronavirus Job Retention Scheme on 31 October 2020 and the announcement of potential redundancies by an increasing number of employers. If expectations are correct, this will be the largest number of claims to ever go through the system, previously having peaked at around 36,000 in 2009/10 after the credit crisis.
A new breed of hearing
Since 26 June 2020, hearings have resumed taking place in-person where possible. However, some Employment Tribunals are unable to operate at anywhere near to full capacity due to social distancing measures as well as staffing issues where there is a need to isolate or quarantine in line with government guidance.
The Employment Tribunals are making use of the Ministry of Justice’s Cloud Video Platform (CVP) system to run some hearings remotely. We have seen CVP being used for ‘straightforward’ matters, such as substantive preliminary hearings and straight-forward unfair dismissal claims, as well as more complex matters including multi-day discrimination claims.
There are positive reports about CVP hearings though unavoidably there are challenges with technological capabilities. Users are expected to have access to a working camera and microphone and mobile phones are not ideal for this purpose. Not all servers are fully compatible with the software and users are advised to access CVP through Google Chrome. A poor or slow broadband connection can also reduce the quality and stability of the experience making it difficult to conduct an effective hearing.
Participants are advised to take care in selecting where and how they access CVP.
Will remote hearings become the norm?
The Ministry of Justice and the Employment Tribunals have made a significant investment in the CVP system and a recent amendment to the Employment Tribunal Rules means that remote hearings are here for the foreseeable future. CVP is set to become a more prominent feature in the Employment Tribunals, particularly now that the second wave of coronavirus appears to be upon us.
Parties will now be expected to confirm if they are able to participate in a video hearing when submitting their ET1 or ET3 forms (required for submitting a claim or response respectively). This, along with a number of other factors including whether the parties can safely travel to the venue as well as the availability of hardware, software and Tribunal staff to support remote hearings, will be taken into consideration when the Employment Tribunal considers in what format to list any hearings.
There will of course be consideration given to personal circumstances, such as whether an interpreter is required, or whether the nature of the evidence requires it to be evaluated in a face-to-face setting.
It is likely that CVP will continue even when social distancing measures are reduced or removed, particularly if CVP hearings have the intended impact of reducing the hearings backlog.
Where appropriate, or necessary, the Employment Tribunal can list the hearing to be held on a wholly remote basis or a partly remote basis. The latter may be used where, for example, some of the witnesses are unable to attend the venue in person.
This is one of the benefits of CVP being available. In the changeable times of COVID-19, parties cannot guarantee that their witnesses will be able to attend in person.
Witnesses who are required to self-isolate, for example, on instruction by Track and Trace, or on the closure of the UK accepted ‘air corridors’, are not expected to attend in-person hearings. We are seeing a pragmatic approach adopted by Employment Tribunals in deciding whether to hold hearings on a ‘hybrid’ basis whereby some individuals attend in person and others via CVP. Such steps will undoubtedly be favoured by the parties where a postponement could mean that a hearing is delayed until summer 2021 or beyond.
Will preparation for hearing be any different?
Parties will need to adapt to some new ways of working when preparing for hearings. Some Employment Tribunals already require the parties (usually the employer) to prepare a small PDF bundle for case-management preliminary hearings.
Before COVID-19, Employment Tribunals rarely accepted delivery of hearing bundles and hard copy witness statements before the first day of a hearing. There is now a requirement to send bundles and witness statements to the Employment Tribunal (whether electronically or in paper form) at least one week before a hearing.
Where at least one party is represented at a remote hearing, all documents are expected to be distributed electronically and viewed electronically throughout the hearing. This is likely to cause problems for those who are limited by technology or unfamiliar with navigating soft copy documents effectively.
All parties, including witnesses, will be required to bring their own copies of the relevant hard copy documents or otherwise wear disposable gloves when handling any shared documents. Witnesses will also need to have at least a 24-hour gap between receiving any hard copies of documents and attending the hearing. This will involve some forward planning particularly where there are a high number of witnesses involved.
In Scotland, typically the Employment Tribunals do not allow parties to rely upon witness statements except in special circumstances, instead hearing evidence by examination-in-chief. However, we are starting to see witness statements being ordered where claims are listed for hearing by CVP for expediency and in an effort to reduce screen time.
What are the alternatives to a hearing?
Individuals are still required to initiate early conciliation before they can bring a claim in most cases. The services of ACAS remain open to parties, though the increased number of cases might mean that they are not able to assist as fully or quickly, as the parties may like.
Judicial mediation has been available to parties for a number of years and is usually offered where the Employment Tribunal believes it is appropriate, both parties are interested in it and where the employer is willing to pay a financial settlement. There has been an additional push in favour of judicial mediation by the Employment Tribunals, where successful mediations are helping to reduce the backlog of cases. Judicial mediation has been taking place by telephone and CVP, which has proved to be as effective as in-person mediations.
Tips for employers
Employers should plan ahead when an Employment Tribunal claim is expected or received. Here are our top tips:
- Ensure that documents are in a clear and legible format. If handwritten notes are illegible or in a format that cannot be clearly scanned, consider typing them up;
- Consider ways to secure a witness’ attendance at the hearing if they are due to leave the business. If the witness is leaving under a settlement agreement, consider including an obligation for the witness to assist with the particular legal proceedings. Be cautious with end-dates as it could be some time before a claim reaches a hearing;
- If witnesses share concerns about attending a hearing in person or are instructed to self-isolate, act quickly to inform the Employment Tribunal and consider the merits of an application for the witness to provide evidence remotely by CVP;
- For any matters where there is interest in settlement, consider whether this can be settled at an early stage (for example, during early conciliation) or at judicial mediation, which can often be arranged by the Employment Tribunals much sooner than a final hearing.