New Employment Tribunal Procedure Regulations
The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020
Commencement: regulations 19, 20, 21 and 22(2) come into force on December 1, 2020. The remainder come into force on October 8, 2020.
A recent House of Commons report stated that, for March 2020, the longest waiting time between receipt of claim and date of first hearing in some of the busiest Employment Tribunals was up to 165 weeks. There is reported to be a backlog of 45,000 ET applications.
These regulations add yet another layer to the grindingly complex existing procedural rules. They are drafted in the conventional style, with references to other previous regulations, which makes them awkward to follow. It is difficult to see how litigants in person can navigate them.
Non-employment judges have regularly sat in the Employment Appeal Tribunal and some are reported to have demonstrated their lack of expertise in employment law and procedure.
Who will the “legal officers” be?
The full implications of the new regulations can only be understood by referring to the old regulations. This is not unusual for the work of parliamentary draftspersons.
These Regulations make procedural changes to tribunal and early conciliation practice, including the cross-deployment of judges to employment tribunals, the functions of legal officers, correcting errors on the early conciliation form and claim form, the conduct of electronic hearings, the listing of short-track cases, the recording of judgments and the time limit for early conciliation.
The primary impact of these changes is stated to be “to reduce unnecessary bureaucracy in providing access to justice through the ET system”. The estimated familiarisation costs to business and the ongoing costs and benefits to business from the reforms are expected to be well below the threshold of £5 million a year required for the production of a full impact assessment. The new regulations include:
Non-employment judges will be allowed to sit as employment judges.
Legal officers: see regulations 10A, 10B. Lord Chancellor may appoint legal officers with a wide range of responsibilities. These include uncontentious case management decisions, for example:
considering acceptance or rejection of claim forms and giving permission to amend claims and responses when both parties consent.
dismissal of a claim following withdrawal.
postponement of hearings where both parties agree and the application is made more than 7 days before the date set for the hearing in question.
Employment judges can issue default judgments without a full hearing.
Judgments can be reconsidered by any judge, not only the judge who gave the original judgment.
The ET will have power to list cases for hearing on receipt of the claim form. The hearing date must be no sooner than 14 days after the response is due.
Multiple claimants can use the same claim form if there are common or related issues of fact or if it is otherwise reasonable.
Claims will not be dismissed if the Early Conciliation number on the claim form is not the same as on the EC certificate, where the judge considers that it would not be in the interests of justice to reject the claim.
Claims will be accepted where there is an error, rather than a minor error, in relation to a name or address.
Early conciliation: for “one month” substitute “six weeks”.