On 1 December 2020, the rules in relation to early conciliation were changed. Guidance has been issued by the Presidents of the Employment Tribunals in England, Wales and Scotland on hearings in light of the current lockdown.
The facts
As we reported in October the Employment Tribunals Rules of Procedure have been amended, partly in reaction to the backlog in tribunal claims resulting from the pandemic which is reported to be around 45,000 cases. These amendments include changes to the rules of procedures for ACAS Early Conciliation.
These changes, which came into effect on 1 December 2020, are:
- a simplification to the length of the early conciliation period. The period is now six weeks, instead of four weeks with an optional extension to six weeks; and
- giving ACAS conciliators greater discretion to amend the early conciliation form at any time during the early conciliation period.
Employment Tribunal guidance on tribunal hearings was issued to deal with the current lockdown. The guidance advises:
- that any hearing that has been scheduled to take place on an in-person or hybrid basis will continue to take place on that basis, unless parties are informed to the contrary by the relevant Employment Tribunal regional office;
- while tighter restrictions operate the aim is for physical attendance at an Employment Tribunal venue to be the exception, and only where it is necessary in the interests of justice;
- the Employment Tribunals will try to facilitate remote attendance as often as possible;
- as quickly as judicial and administrative resources permit, lists of cases due to be heard are being examined to see whether in-person hearings can be converted to hybrid or fully remote hearings, or whether hybrid hearings can be converted to fully remote hearings; and
- decisions on the format of hearings made earlier in 2020 may be revisited.
What does this mean for employers?
Employers who have imminent tribunal hearings may expect to have changes to the format of hearings, particularly as systems for remote hearings are being used more extensively. Remote hearings are likely to proceed as planned. Employers should liaise with the their legal team or relevant Employment Tribunal office for updates on the status of their hearing. The Government is committed to the justice system continuing to function during the latest lockdown so every attempt will be made to allow hearings to proceed where it is possible and safe to do so.
On the early conciliation changes, any simplification to the tribunal process, particularly at the moment, is welcome and this may slightly increase the likelihood of settling claims before tribunal claims are issued.
