The changing landscape of Employment T ribunals Rustom T ata, Rebecca Thornley Gibson and Gary Self, 3 Pump Court Chambers, T emple WWW.DMHSTALLARD.COM
Employment T ribunal Roadmap • Have you had a hearing which was due to take place since Easter 2020 cancelled/converted to a case management hearing? Poll WWW.DMHSTALLARD.COM
Employment T ribunal Roadmap • Have you attended a ‘virtual’ hearing? Poll WWW.DMHSTALLARD.COM
Employment T ribunal Roadmap – Appendix to Presidential FAQs (3 rd edition) Sets out framework for remainder of 2020 New technology Grading of cases WWW.DMHSTALLARD.COM
Introduction of Cloud Video Platform 150 ‘hearing’ licences Gradual training of EJs and Lay Members Current hybrid approach – T eams and Skype WWW.DMHSTALLARD.COM
Three types of case Short track – money claims, SRP , notice Standard track – unfair dismissal (EJ sitting alone) Open track – discrimination, whistle-blowing WWW.DMHSTALLARD.COM
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 WWW.DMHSTALLARD.COM
Current experiences of Employment T ribunals WWW.DMHSTALLARD.COM
Issues to consider Practicalities • T echnology needs to work for all • Court Etiquette remains key • Confidentiality and privacy v public access • Speed of hearing considerations for listing WWW.DMHSTALLARD.COM
Electronic Bundles will need greater pre hearing focus Different approach to giving evidence and cross examination? Adjournments and taking client instructions during the hearing WWW.DMHSTALLARD.COM
View from the Bench WWW.DMHSTALLARD.COM
Vulnerable parties WWW.DMHSTALLARD.COM
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? WWW.DMHSTALLARD.COM
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 WWW.DMHSTALLARD.COM
View from the Bench WWW.DMHSTALLARD.COM
Changing dynamics of claims and settlement WWW.DMHSTALLARD.COM
Current tribunal workload Stretched Administratively light Time between issue of claim and first hearing increasing WWW.DMHSTALLARD.COM
Impact of Covid-19 on claims More claims expected due to furlough, redundancy, pay cut decisions T ypes 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 WWW.DMHSTALLARD.COM
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? T urn to alternative forms of dispute resolution Will tribunals be more tolerant with respondent decisions due to Covid-19 pressures? WWW.DMHSTALLARD.COM
View from the Bench WWW.DMHSTALLARD.COM
Law Commission Recommendations in relation to Employment T ribunals Law Commission Recommendations Not a full blown review Focus on anomalies, efficiency, over-separation WWW.DMHSTALLARD.COM
Law Commission Recommendations in relation to Employment T ribunals - 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) WWW.DMHSTALLARD.COM
Law Commission Recommendations in relation to Employment T ribunals -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 ET s to apply s1 statement terms WWW.DMHSTALLARD.COM
Law Commission Recommendations in relation to Employment T ribunals -4 Contribution as between respondents in discrimination claims More effective enforcement mechanism – but not through ET system WWW.DMHSTALLARD.COM
Law Commission Recommendations: What next? Ministerial response – Autumn 2020 ?Legislation – Spring 2021 WWW.DMHSTALLARD.COM
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