How is Covid-19 affecting Employment Tribunals?
27 August 2020
Covid-19 has created a significant backlog problem in the Employment Tribunal. Employers are increasingly likely to see claims relating to furlough and/or a safe return to work, and many hearings will be dealt with remotely.
Anyone who has dealt with Employment Tribunal (ET) claims recently will know that the system was already struggling with resourcing before coronavirus struck, with some cases not being listed for a final hearing for more than a year.
The Covid-19 pandemic has only added to this backlog. The courts have been scrambling to implement technology for remote hearings, and the ET landscape is likely to be changed permanently as a result.
The current position
Back in March, the Lord Chief Justice published a statement on court arrangements due to Covid-19 explaining that, following the government’s announcements on the lockdown, specific arrangements had to be put in place regarding hearings. This included making use of telephone, video or other technology to continue as many hearings as possible. Not everything could be dealt with remotely, however, and less than half of all court and tribunal buildings remained open for physical hearings.
A further statement on courts and tribunals recovery from the Lord Chief Justice on 1 July 2020 has explained plans to reopen most venues and confirmed that there will be more video and audio hearings.
In the ET, the first statement meant that all hearings due to take place from 23 March 2020 onwards were cancelled and replaced by a telephone case management hearing to deal with re-listing. This was done through a Presidential Direction, accompanied by Presidential guidance on the conduct of ET proceedings during the Covid-19 pandemic.
Nearly all cases which were due to be heard in April, May and June have been postponed to a later date, but from 29 June 2020 many hearings have been going ahead. The ET is contacting parties shortly in advance of the listed hearing to discuss whether the hearing can proceed and, if so, in what form.
Cases are now starting to be heard using video technology, mainly through the Ministry of Justice’s Cloud Video Platform (CVP) system. Some in-person hearings are also now taking place using rooms that are suitable for social distancing, either with all parties present or as a “hybrid” hearing where some parties or witnesses attend by video link. Remote hearings can be particularly challenging in longer cases which include members on the panel as well as the judge, and for some vulnerable claimants in person who may find it difficult to deal with the technology.
In the short term at least, it is likely that ETs will try to list as many cases as possible for a video hearing. ETs are going to expect the parties to cooperate with each other and find ways around practical problems. These might include providing electronic bundles of documents, shortening the issues in a case by agreement to make the hearing time shorter, and considering judicial mediation. The ET Presidents have issued a useful set of FAQs arising from the Covid-19 pandemic to help guide parties on what to expect.
The decision to re-list nearly all cases which were due to be heard in the last three months has inevitably made the backlog worse. Depending on the length of the hearing and on the location of the ET, the new listing could be as “early” as February 2021 or as late as 2022! In some cases, this may mean the hearing takes place more than three years after the claim was first issued.
There are also various new potential claims arising from Covid-19 and furlough, the most significant of which may be linked to employees’ concerns regarding their health and safety. These include whistleblowing claims and claims arising from employees refusing to work because of a belief of a serious and imminent danger. It is too early to know what impact this may have on the ET system, but these types of claims might well become more frequent as more employees return to the workplace. (For more information, see our FAQs on staffing decisions when reopening workplaces.)
With the furlough scheme ending on 31 October 2020, and gradually less financial support from the government from the start of August, there are increasing financial pressure on employers. Businesses are considering their options on how to bring employees back to work. Some employers, especially in the retail and hospitality sector, have been hit so hard by the lockdown that a return to normal business is unlikely and announcements of significant redundancies are expected in the next few months. This in turn means that employers should be prepared for an increase in related ET claims, especially if it is difficult for employees to find another job. This will only increase the challenges for the ET system.
Given the existing backlog of cases, any new ones - depending on their length and the ET region - are unlikely to be listed for a final hearing until mid-2021 at the earliest, with cases already postponed taking priority. The Presidents’ FAQs confirm that whistleblowing and health and safety cases will be prioritised, which will help both employers and employees as these claims are likely to be urgent if they concern issues about safety in the workplace.
ETs are pushing parties to consider judicial mediation as an alternative option. This has the advantages that it can be done by video link or by telephone, usually involves less preparation than a final hearing, and can be dealt with in a shorter timeframe. If the mediation is successful, the case is then removed from the ET’s list, freeing space for other cases which are not settling.
What can parties do?
Employers will need to consider ways to deal with the potential increase in cases and the likelihood that they may take years to be concluded. Ideally claims should be avoided in the first place, such as by dealing with grievances quickly and effectively, and facilitating negotiations with employees internally. The delays in cases being heard could potentially be used as a tool in settlement negotiations with a disgruntled ex-employee. And where claims are made, employers should consider collecting relevant documents and witness statements at an early stage, to help avoid the problem of memories fading if the ET hearing is delayed.
The Presidential guidance referred to above expressly encourages “all those who seek to access justice through the [ET] system to approach the unprecedented circumstances we now face in a spirit of mutual cooperation”. It seems likely that remote hearings will become the norm for the foreseeable future and may well continue even after the current crisis is over. Parties and representatives will need to adapt quickly and get accustomed to their “day in court” taking place in their homes.
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