Ever since Employment Tribunal fees were abolished in 2017, we have seen a sharp rise in the number of claims being made without any substantial increase in the resources available to deal with such claims.
This has led to a severe back-log of cases that has been exacerbated by the COVID-19 pandemic, with as many as 51,000 outstanding cases to be heard at the end of February 2021. The economic fallout from the pandemic is likely to see more jobs lost, and potentially more employment claims being brought as a result. Alongside this, we are also seeing a drastic change in the world of work and new ways of working, therefore it is inevitable that the number of employment cases will continue as we enter into the post COVID-19 working environment.
As part of the continued effort to deal with this back-log and by way of an overarching ‘reform’ programme aimed at improving the current tribunal set-up, the Employment Tribunals have published a road map for 2021-22 which details what steps are being taken and what initiatives could be introduced to help deal with the ever increasing back-log and lengthy delays for newly issued cases. This article aims to give both employers and employees a flavour of what is to come when dealing with the Employment Tribunal. The key takeaways from the updated roadmap are:
Video hearings have been identified as an essential element of the Employment Tribunal landscape within the road map and will remain a consistent feature of Tribunal hearings even post COVID-19 for a least a couple of years.
The current software used is called Cloud Video Platform (CVP), a secure Government video link operated by the Ministry of Justice and the HM Courts and Tribunals Service. New software is currently being trialled in the South West region and will aim to replace the CVP platform in early 2022.
In the meantime, the road map sets out the circumstances in which a video hearing will be the default option, which includes:
- Preliminary case management hearings (or via telephone);
- Preliminary hearings to determine a preliminary issue (ie. time limits, employment status);
- Preliminary hearings to consider an application to strike out /deposit order;
- Applications for interim relief
- Judicial mediations (or via telephone);
- Final hearings of short-track claims (unpaid wages, notice, holiday pay, redundancy pay etc);
- Final hearings of standard track claims (ie. unfair dismissal) in those areas where backlog is severe, such as London and the South East.
- Applications for reconsideration or costs/expenses.
Whether you are submitting or defending a claim; you must be prepared to deal with the likelihood of having to attend virtually. Our Employment and HR team are well placed to assist throughout the process, having conducted various remote hearings this year and last. We also have state of the art meeting rooms within our offices which means we can conduct virtual hearings in a COVID-19 secure manner.
Set to launch this month, this initiative will see 100 existing Judges enter what will be called a ‘virtual region’. This region will hear claims like any other via CVP and will take advantage of the flexibility of video hearings, enabling judges and staff who are geographically dispersed to come together and hear cases generated by any region in the country. This means going forward, as a part of the continued effort to reduce the backlog in cases, you may not have your case heard by a Judge in your region.
Case Management Software
A new ‘Employment Case Management’ (ECM) software is currently being rolled out across all regions, replacing the existing ‘Ethos’ system. It is hoped that this will facilitate better case management overall. Crucially, it enables remote working for all HMCTS staff that its predecessor did not – this will hopefully tie in nicely with the increased use of video hearings and help reduce the backlog faster.
This month will also see 16 new Legal Officers start their 6 month training period. Once completed, they will be able to hear cases within their delegated powers, taking some of the more administrative tasks off the plate of Judges. This includes things such as applications for postponement, applications to amend, dismissal of cases withdrawn on settlement, general case-management and case progression powers.
Alongside this, an ‘expressions of interest’ exercise is expected later in the spring, which will attempt to recruit salaried and fee paid Judges working in Courts and other Tribunals with suitable Employment Law expertise. These above initiatives are an attempt to bolster the ranks to allow more cases to be heard in a time effective manner.
The Tribunal have also announced a number of initiatives which will be trialled over the next few months and have been piloted in a number of regions. These include immediate listing of open track claims on service and the introduction of a new type of private preliminary hearing known as ‘ADR Hearings’ where a Judge explores the possibility of settlement with the parties after witness statements have been served but well before the final hearing.
Watch this space for more information on these two initiatives!
The Tribunals are clearly looking to improve internal systems and software as well as taking steps to recruit more Tribunal staff. This is definitely a step in the right direction to try and reduce the growing backlog of cases. It will remain to be seen whether the initiatives outlined above within the road map will be enough to do this and deliver justice promptly going forward.
If you or your business is going through the Employment Tribunal system and require advice on the process, please do not hesitate to contact a member of the Burnetts Employment and HR team at firstname.lastname@example.org or 01228 552222.