The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemption and Rules of Procedure) (Amendment) Regulations 2020 were put before Parliament on 17 September.
The Regulations will amend the Employment Tribunal Rules of Procedure 2013 with the objective of increasing employment tribunals' capacity to hear claims. The rule changes will allow for more flexibility in remote hearings. They will also:
- Allow non-employment judges to sit in employment tribunals (including judges of the First-tier Tribunal and Upper Tribunal, High Court judges, deputy High Court judges and circuit judges).
- Widen the scope for multiple claimants and respondents to use the same ET1 and ET3 forms.
- Allow claim forms to be accepted despite an error in the EC number.
- Allow legal officers to make certain determinations currently reserved to employment judges (considering acceptance or rejection of claim forms, extending time for an ET3 or for compliance with case management orders, giving permission to amend claims and responses where both parties consent, ordering further information, and dismissing claims by consent upon withdrawal) .
- Allow tribunals to list cases for hearing before the deadline for responding to the claim has passed.
- Exclude claims dismissed on withdrawal from the public register of judgments.
All of these changes will come into force on 8 October 2020. The Regulations will also amend the Acas Early Conciliation (EC) rules to change the default EC period from one calendar month to six weeks. This change will come into force separately on 1 December 2020.
In the meantime a Practice Direction and practice guidance have been issued by the President of the Employment Tribunals in England and Wales. The Practice Direction on remote hearings and open justice came into force on 14 September and is designed to facilitate remote tribunal hearings in response to the COVID-19 pandemic.
The Practice Direction clarified that employment tribunal hearings may take place on a wholly or partly remote basis. A hearing taking place over more than one day may use a combination of methods. The Practice Direction sets out the practical arrangements for allowing members of the press and the public to observe remote hearing and to inspect witness statements being placed on screen or read out loud. Physical attendance by members of the public may not be practicable given the size of the venue and the Direction provides that, in these circumstances, an application may be made to the tribunal for the facility to observe the hearing remotely.
The 'Presidential Guidance on remote and in-person hearings', offers practical guidance on the factors that may influence the judicial decision on the format of the hearing; the responsibilities of parties and representatives towards witnesses in advance of a remote hearing; the preparation of electronic and paper bundles; arrangements for minimising the risk of infection when handling paper documents; and the safety arrangements that apply when parties or witnesses attend a tribunal hearing in person during the pandemic.
