As many know, the ET has baulked at the strain of dealing with an increasing caseload. Not only have applications to the Tribunal gone up (see my blog on recent ET statistics for the last quarter in 2020 here), but the Covid pandemic, in the ET’s own words has been a “disruptor and an accelerant”. With ETs closed for a while last year and then having to switch to virtual video hearings because in person hearings were extremely difficult, the waiting times for hearings especially in London and the South East has increased exponentially. The pandemic has also meant that the ET has had to tackle new ways of working, accelerating a review of its processes, especially since video hearings introduced in a hurry are now probably here to stay for the foreseeable future.
Last week, the Presidents of the Employment Tribunals in England, Wales and Scotland published a new “road map” for ET proceedings in 2021/2022. It confirms that for now, the majority of hearings will continue to be conducted remotely. Further, it will set up a new virtual eleventh region, where any case in the ten regions in England and Wales can be assigned for hearing.
To return to normal, despite the Presidents acknowledging that face to face hearings give the best experience of justice, and to deal with its large caseload, virtual hearings will continue for at least for the next two years. All of the following will default to video hearings:
- Preliminary hearings to consider case management directions (which can also be conducted by telephone);
- Public preliminary hearings to consider preliminary issues such as time limits, length of continuous service for unfair dismissal etc.;
- Preliminary hearings to hear applications for strike outs or deposit orders;
- Applications for interim relief;
- Judicial Mediation (which can also conducted by telephone);
- Hearing of straightforward claims such as for unpaid wages, notice pay or holiday pay;
- Other hearings such as to dealing with applications for costs or reconsideration.
For unfair dismissal, discrimination and whistleblowing claims, it will vary as to whether hearings will be conducted by video. Where the backlog is greater, such as in London, these hearings though will be done remotely.
For each case the ET will have discretion to vary this new default position especially where representations are made by either party. For example, a deaf person will find it very difficult to effectively participate in a remote video hearing, given the difficulties caused by a delayed time lapse in the video feed, making lip reading very difficult and the ability not to have live captioning or for a sign interpreter to be effective in such circumstances.
It will be very interesting to see if the ET can finally manage to get on top of its caseload. For now, we notice that the delay in having a hearing is prompting more parties to negotiate and settle earlier on, rather than wait for more than a year to have their case heard.
The roadmap can be found here.
This blog is by Anita Vadgama, Legal Director for didlaw.
