Employment Tribunals and Covid-19

Having ongoing employment issues being dealt with by the Employment Tribunal system before the Covid-19 pandemic and still continuing after the UK  lock-down came into being  in March 2020, is proving interesting.

In January 2020 at an ordinary hearing at the South London Employment Tribunal orders were made by an Employment Judge which included details of how the claims were to proceed.

However, even before the lock-down, employment tribunals might take weeks to issue printed versions of their orders. In my case when  the printed ET orders arrived they included several errors. for example incorrectly referring to the issues as including disability  (rather than age) discrimination  which error  and others, continued after representations were made to the  learned ET  judge about the same.

The next step was that the parties were given time to exchange  witness statements on the issues of employment and age discrimination, which  exchange after the respondents were given extra time, occurred on 11th June. Unfortunately, the respondents' lawyers did not give any indication in advance that their statement would be limited to the employment issues (unfair dismissal etc) without referring at all to age so their  single witness statement contained no such evidence whereas mine included many evidential details. Previously the respondents had signified that they would provide three witness statements but appeared to abandon  this  without advance notification or explanation  at the eleventh hour

A Zoom type hearing had been offered by an Employment Judge for the hearing that had been fixed for last Thursday but the  respondents  opposed this so the hearing was instead converted to a case management conference over the telephone.

The learned judge at the case management conference, listened to my complaint about the failure of the respondents to cover the relevant issues in their witness statement, and after some  heated representations, ordered them to do so within 7 days. She then fixed a new hearing date for 18th December 2020 ironically specifying the very Zoom type hearing  previously opposed by the respondents, if full attended hearings at employment tribunals were still not occurring by then.

Though the outcome so far is relatively satisfactory, there is a need in my view to change and update procedures at such tribunals, especially as it appears that the backlog of cases caused at least partially by the pandemic, is huge and will take perhaps a year or more to clear.

The first change should be to require claimants to pay fees for commencing ET cases in much the same way as fees are paid for civil court cases  generally.  Of course these should be means tested where apt. Successful claimants would be rebated their fees by the respondents, in addition to payment of the compensation ordered. Unsuccessful claimants would not be rebated their fees. On the last occasion this change was made, the number of ET cases dropped by over 80% making the system more manageable. The fees aspect was at the time, opposed by the unions whose arguments were successful in the Supreme Court. Now that the government has a sizeable majority there should be rather less difficulty in securing this much needed change though legislation.

The second change should be far more involvement of the union/employer representatives with  ET hearings. Restricting so many hearings to Employment Judges alone,  risks parties who are represented by counsel, receiving or being perceived to receive, more sympathy from Employment Judges most of whom (admittedly not all) are themselves also  counsel.

The third change should be to restructure the system to make it far more possible for individuals to conduct their cases personally, as was the original intention when Ted Heath's old National Industrial Relations Court was replaced by the the system of what were then call Industrial Tribunals. The argument against this is that employment law has become so much more complicated as a consequence of European Court decisions. Now that the UK has left the EU this could become less of a difficulty.

When/if the position alters, I  expect to post more.