The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (SI 2020/1003) were approved in September and a number of the changes came into force on 8 October 2020. The changes are aimed to increase the flexibility of the tribunal system and help alleviate the pressure of the current back-log of cases. This is a short summary of the main changes.
Various non-employment judges (such as High Court judges, circuit judges, district judges and Recorders) will be able to sit as employment judges in appropriate cases.
Legal officers will be appointed to carry out certain functions previously carried out only by employment judges, such as:
• Determining whether a claim form should be rejected for any inconsistencies with the Early Conciliation details.
• Determining whether extensions of time should be given, for example, either to file a response or comply with a case management order.
• Deciding whether an agreed application for postponement of a hearing can be ordered.
• Giving orders for a lead case to be used where two or more claims raise related issues of fact or law.
• Dismissing claims on withdrawal.
Parties will be able to challenge the decisions of legal officers by applying in writing to the tribunal for a decision of a legal officer to be reconsidered by an employment judge within 14 days.
Two or more claimants will be able to make their claim on the same claim form if their claims give rise to related issues of fact or law and there is a similar relaxation for response forms.
Previously, if there was an inconsistency between the EC number on the claim form and the EC certificate, the claim form had to be referred to an employment judge for consideration. This change means that the claim form does not have to be rejected on this basis if the judge considers a mistake was made and it would not be in the interests of justice to reject the claim. If no EC number is given at all, the claim must still be rejected.
Judges can now accept a claim form where they consider that the claimant made “an error”, rather than a “minor error”, in relation to the name of the claimant or respondent and it would not be in the interests of justice to reject the claim.
In hearings which take place by electronic communication, witness statements may be made available for inspection by the public otherwise than during the course of the hearing only. The rules about seeing a witness are also relaxed so this is required only “so far as is reasonably practicable” during a remote hearing, although it is still required that the parties and public can hear what the tribunal hears.
Now any employment judge can reconsider a rejection, not just the judge who originally made the decision.
Now a default judgment may be issued after the hearing for an uncontested preliminary issue without the need for a further hearing.
ACAS: Changes to early conciliation procedure from 1 December 2020
The length of the EC period will be increased to six weeks instead of one calendar month, but the power to extend the EC period by 14 days has been removed.