The changing landscape of Employment Tribunals

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The changing landscape of Employment Tribunals

Rustom Tata, Rebecca Thornley Gibson and Gary Self, 3 Pump Court Chambers, Temple

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Employment Tribunal Roadmap

• Have you had a hearing which was due to take place since

Easter 2020 cancelled/converted to a case management

hearing?

Poll

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Employment Tribunal Roadmap

• Have you attended a ‘virtual’ hearing?

Poll

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Employment Tribunal Roadmap – Appendix to

Presidential FAQs (3rd edition)

Sets out framework for remainder of 2020

New technology

Grading of cases

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Introduction of Cloud Video Platform

150 ‘hearing’ licences

Gradual training of EJs and Lay Members

Current hybrid approach – Teams and Skype

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Three types of case

Short track – money claims, SRP, notice

Standard track – unfair dismissal (EJ sitting alone)

Open track – discrimination, whistle-blowing

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Four phases of hearing

June, July/Aug, Sept/Oct, Nov/Dec

Initial focus on case management, judicial mediations and

priority hearings

Gradual reintroduction of in person hearings and open track

cases

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Current experiences of Employment Tribunals

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Issues to consider

Practicalities

• Technology needs to work for all

• Court Etiquette remains key

• Confidentiality and privacy v public access

• Speed of hearing considerations for listing

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Electronic Bundles will need greater pre hearing focus

Different approach to giving evidence and cross

examination?

Adjournments and taking client instructions during the

hearing

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View from the Bench

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Vulnerable parties

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Presidential guidance on vulnerable parties

Issued 22 April 2020 to all tribunals in England and Wales

Need to have regard to it as part of the “overriding objective”

Who can be a vulnerable party?

How will vulnerability be determined?

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Responsibility of the respondent employer to identify a

vulnerable party at an early stage

What impact will it have on proceedings and litigation

approach?

Range of factors to consider in deciding if “Ground Rules” or

orders needed

Range of measures and adjustments that could be made

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View from the Bench

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Changing dynamics of claims and settlement

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Current tribunal workload

Stretched

Administratively light

Time between issue of

claim and first hearing

increasing

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Impact of Covid-19 on claims

More claims expected due to furlough, redundancy,

pay cut decisions

Types of claims expected to increase:

• Redundancy unfair dismissal

• Discrimination arising from selection

• Unlawful deductions from pay cuts

• Whistleblowing/H&S concerns from return to work issues

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Approach to claims and settlement by

Respondents

Risk of higher financial awards due to high unemployment

Longer wait for hearings

Gamble on when to settle

Will your witnesses still be available in 12/18 months?

Turn to alternative forms of dispute resolution

Will tribunals be more tolerant with respondent decisions due

to Covid-19 pressures?

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View from the Bench

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Law Commission Recommendations in relation

to Employment Tribunals

Law Commission Recommendations

Not a full blown review

Focus on anomalies, efficiency, over-separation

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Law Commission Recommendations in relation

to Employment Tribunals - 2

Limitation period – increase to 6 months across all

jurisdictions

‘Just and equitable’ test where extension is sought

Working time declarations by ET

Equal pay claims – presumption of ET (not pension claims)

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Law Commission Recommendations in relation

to Employment Tribunals -3

Breach of contract claims limit to be increased to £100k

Breach of contract claims while still employed

Workers could also claim

Unlawful deductions and set off reform

ETs to apply s1 statement terms

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Law Commission Recommendations in relation

to Employment Tribunals -4

Contribution as between respondents in discrimination claims

More effective enforcement mechanism – but not through ET

system

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Law Commission Recommendations: What next?

Ministerial response – Autumn 2020

?Legislation – Spring 2021