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It will come as no surprise that COVID-19 has had a significant impact on the Employment Tribunal (ET). In August 2020, the number of cases waiting to be heard by the ET reached a record 45,000. It is expected that this will be exacerbated by a further influx of claims arising from COVID-related issues such as furlough leave, changes to terms of employment contracts, and redundancies.
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Background
The consequence of the abolition of ET fees in July 2017 has meant that, even before the COVID-19 pandemic, parties could wait as long as 12 months for a final hearing. In some instances, where claims were particularly complex, this wait could be even longer. These lengthy waiting times are only set to increase with the number of claims already backlogged in the system due to COVID, and the rapidly increasing unemployment rate threatening to compound this even further. The Office for National Statistics has recently confirmed that unemployment rates have increased from 3.9% to 4.1%, 0.3 percentage points higher than the same time last year, and 0.2 percentage points higher than the previous quarter.
How has the ET been operating through the pandemic?
At the beginning of the lockdown period in March 2020, the Lord Chief Justice published a statement on court arrangements, explaining specific arrangements for certain hearings (e.g. by telephone or video conference) and outlined that less than half of the court and tribunal buildings would remain open until further notice. There has been some variation across the country in how Employment Tribunals have been working. Whilst some have embraced remote or hybrid hearings, utilising video conferencing technology such as the Ministry of Justice’s Cloud Video Platform (CVP) system, the overall progress of claims has undoubtedly reduced, as nearly all hearings which were due to held in April, May and June 2020 have been postponed.
In July 2020, a further statement outlined a plan to start reopening courts and tribunals whilst simultaneously continuing with remote hearings. However, with previously postponed hearings now beginning to be relisted, the back-log of cases has only increased, and the ET is now listing final hearings as far away as 2022. The HM Courts & Tribunal Service has updated their Coronavirus guidance (here), to clarify that parties with on-going claims do not need to contact the ET regarding listed hearings, and they will be contacted in due course.
Looking to the future: what does this mean in practice?
With the furlough scheme currently scheduled to end on 31 October 2020, it is anticipated there will be an influx of ET claims relating to redundancy, as many businesses continue to experience tough times. More complex complaints of whistleblowing and health and safety breaches are also likely to arise.
There is an understandable concern that the large number of claims will put the court system under unsustainable strain. In response to this, the Government has announced changes to the ET rules to allow more flexibility for remote hearings and ensure, wherever possible, that the burden on courts, claimants and defendants is reduced. These changes will start to come into force from as early as 8 October 2020.
Key considerations for employers
- Minimise risk of claims being brought in the ET
ET claims must usually be brought within three months less one day of termination of employment or, where applicable, the occurrence of the relevant incident. Before a claim can be brought, parties must go through the ACAS Early Conciliation process, which effectively pauses ET proceedings to encourage parties to reach a settlement without involving the ET. The benefit of actively engaging in this process is heightened by the back-log in the ET system, as the delay in cases being heard can arguably be a useful tool when taking part in settlement negotiations.
It is also important to bear in mind that, due to delays in the ET system, employers may not be aware that a claim has been brought against them until well after the usual three month timeframe. There is every chance that this sense of security is false and a claim has in fact been brought, but the ET is taking longer to process the claim. By having successful negotiations during the ACAS Early Conciliation period, employers can avoid the increased delays in the ET, as well as the increased cost and management time required on the part of employer when dealing with prolonged claims.
- Proactively manage the situation
If settlement cannot be reached, it is even more important for employers to consider how they best manage these situations: we recommend getting the basics done as soon as possible. If an ET claim is lodged, collate as much information as possible from relevant employees whilst they clearly recollect events and are still employed by the business; this can save valuable time and money further down the line.
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