the changing landscape of employment tribunals
TRANSCRIPT
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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