Presidential road map for employment tribunals from April 2021 to March 2022

A ‘road map’, which provides details of the listing and methods of conduct of employment tribunal hearings from 1 April 2021 to 31 March 2022, has been issued by the Presidents of the Employment Tribunals of England and Wales (Judge Barry Clarke) and of Scotland (Judge Shona Simon). It provides that: (1) video hearings will continue to be used (and in some instances will be the default position) in order to reduce the outstanding case load which is likely to last for at least the next two years, (2) legal officers will start work in mid-April, determining all matters that fall within their delegated powers (that were previously carried out by employment judges), (3) also in April a ‘virtual’ employment tribunal region will be launched handling cases from any region (but in particular London and the South East in order to reduce the backlog), (4) in the Spring there will be an exercise as a result of which judges from other courts and tribunals may act as employment judges in England and Wales, and (5) later there will be cross-deployment of the employment tribunal judiciary between Scotland and England and Wales.

What is the relevant background?

During the course of 2020, in response to the coronavirus pandemic, and in particular in recognition of the fact that in-person employment tribunal hearings could not continue as normal, the President of Employment Tribunals (England and Wales) (previously Judge Brian Doyle and now Judge Barry Clarke), and the President of Employment Tribunals (Scotland) (Judge Shona Simon) (‘the Presidents’), jointly issued guidance, a practice direction, a set of answers to FAQs and, in June 2020, a road map outlining the listing and potential formats of employment tribunal hearings. The Presidents separately issued directions and guidance in respect of remote hearings.

On 1 June 2020, a road map was added as an Appendix to the FAQs. The June 2020 road map emphasised that access to justice, the delivery of a fair hearing and the safety of all who use the employment tribunals would remain the priorities of the Presidents.

The road map described four phases of 2020: June; July/August; September/October; and November/December. It was intended that the activities and approach of employment tribunals would evolve over those phases.

The road map for 2021-22

The Presidents of the Employment Tribunals of England and Wales (Judge Barry Clarke) and of Scotland (Judge Shona Simon) have now issued a new road map for the financial year from 1 April 2021 to 31 March 2022.

Progress in 2020

The 2021-22 road map starts by looking back at progress so far. It recognises that:

• during 2020, there was a sharp increase in the outstanding caseload and lengthening waiting times for hearings (especially in London and the South East)
• in general terms, justice is best experienced in a face-to-face environment but, in some cases, it will not be
• we must reflect on what we have learned and ensure that we keep hold of the good. The future will involve more, not less, use of technology. We wish technology to be the servant of justice, not its master

Recovery plans

The 2021–22 road map goes on to discuss recovery plans including:

• the roll-out of a new case management software system for the employment tribunals to increase administrative efficiency. It has been deployed during March in the regional ET office in Leeds, across Scotland and the London ET regions. It is hoped that there will be a complete migration to the new system by the end of May 2021
• this new case management software enables remote access by HMCTS staff (which was not possible during 2020). This means that the employment tribunals can remain resilient if social distancing is required or if similar restrictions return in future
• in mid-April 2021, 16 new Legal Officers start work in the employment tribunals across Britain. They will be authorised from the outset to determine all matters that fall within their delegated powers, but this is subject to an extensive programme of training, mentoring and supervision in their first six months. More will be recruited. In addition to their delegated powers, the Legal Officers will be heavily involved in ‘case progression’. In the fullness of time, Legal Officers will look to the cases in the list in the weeks ahead, to check that correspondence has been answered, that the tribunal’s orders have been sent to the parties, that the allocated time remains appropriate and a host of other issues that, hitherto, have tended to be considered at the last minute
• later in April 2021, the President in England and Wales will launch the ‘virtual region’. Populated by about 100 existing fee paid Employment Judges (and in due course by many non-legal members), the virtual region will operate alongside the ten existing regions in England and Wales. It will take advantage of the flexibility offered by video hearings to enable judges, members and staff who are geographically dispersed to come together on the Cloud Video Platform (‘CVP’) to hear cases generated by any region. In its first year, it will redirect resources to London and the South East of England, which together hold well over half of the outstanding Employment Tribunal caseload in Britain
• later in the spring, the President in England and Wales will launch an expressions of interest exercise, by which salaried and fee paid judges working in courts and other tribunals with suitable employment law expertise may act as Employment Judges in England and Wales
• there will also be cross-deployment of the employment tribunal judiciary between the sister jurisdictions in Scotland and England and Wales
• it is planned that the HMCTS reform programme will reach the employment tribunals in the 2021-22 financial year. This will bring further innovations in terms of judicial and user access to case management, document management, the scheduling and listing of cases and a move away from paper files to electronic working

The future of video hearings in the Employment Tribunals

In relation to video hearings, the 2021-22 road map confirms that:

• a platform to replace CVP is being piloted in the South West England region
• without video hearings, the outstanding caseload would be very much higher than it is. It has remained static in the first three months of 2021 and there are encouraging signs that it is slowly reducing
• video hearings have facilitated a steady increase in the rate at which claims presented to the employment tribunals can be adjudicated upon—the ‘disposal rate’. The disposal rate had returned to its pre-pandemic rate by Autumn 2020, and it continues to improve
• the pandemic has inflated the caseload (which had been rising for some time anyway since the Supreme Court’s judgment in the Unison case in 2017). It follows that a return to holding only face-to-face final hearings as restrictions relax is not an option for employment tribunals. Video hearings must remain an essential part of the toolkit while the outstanding caseload challenge persists, which is likely to be for at least two years
• some parts of Britain will remain more heavily reliant on video hearings, while others may return more swiftly to face-to-face hearings. That is because some regional offices have limited space for hearings, because HMCTS staff (in order to observe distancing) are working in hearing rooms; and some hearing rooms are too small to accommodate all those who need to be present on a socially distanced basis
• some parties object to a video hearing because they do not consider it to be a just way to proceed where evidence is disputed; others object to an in-person hearing because it is not a proportionate way to proceed where it causes disruption and possibly unsafe travel. There appears to be consensus that video hearings are more tiring and take longer
• the solution is not to be found in exclusively adopting one method over another. If we are to build on what we have learned over the last year, the better approach is to recognise that a mixture of platforms (remote, hybrid and in-person) will subsist

Hearings in 2021-22

The 2021-22 road map provides that deciding the appropriate format for a hearing remains a judicial decision, taken in the light of the tribunal’s overriding objective. The respective guidance documents remain valid in identifying the relevant considerations that apply .Parties are asked in the prescribed ET1 and ET3 forms whether they have access to the internet and the equipment necessary to take part in a video hearing. The replies to these questions will be taken into account in assessing whether the default position below should apply.

Subject to that, and to periodic review, the 2021-22 road map confirms that the default position will be that:

• the following hearings will default to telephone or video:
  • preliminary hearings listed in private for case management purposes
  • judicial mediations
• the following hearings will default to video:
  • preliminary hearings in public to determine a preliminary issue (e.g., time limits, employment status)
  • preliminary hearings to consider an application to strike out or for a deposit order
  • applications for interim relief
  • final hearings of short track claims (unpaid wages, notice, holiday pay, redundancy pay etc)
  • other hearings listed specifically to deal with applications for reconsideration or costs/expenses
• the following hearings will vary:
  • final hearings of standard track claims (unfair dismissal): In most parts of Britain, as the physical estate recovers and requirements for social distancing are removed, they will return in greater numbers to in-person. This will take time, as recovery will not be uniform. In London and the South East, however, where the backlog is most severe and to maximise use of the virtual region, they will default to video
  • final hearings of open track claims (discrimination and whistleblowing): In most parts of Britain, they will default to in-person. The parties will be able to express a contrary view at the earlier preliminary hearing held for case management purposes, having regard to the respective guidance documents. In contrast, in London and the South East, where the backlog is most severe and to maximise use of the virtual region, parties should expect to see greater reliance on video, including hybrid formats. This will also facilitate remote participation by non-legal members drawn from the virtual region

The default position will apply to cases yet to be listed, although it is open to a tribunal to revisit its approach on its own initiative or upon application by a party if a case has already been listed.

Different employment tribunal regions, and different parts of Britain, may need to act differently. In every case it will be open to an Employment Judge to decide that the default position above should not apply; and it will always be possible for a party to write to the employment tribunal office handling the case to explain why they would like the hearing to be held using a different format.

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.