Presidential Road Map for Employment Tribunals from April 2022 to March 2023

The Presidents of the Employment Tribunals in England and Wales, Barry Clarke, and in Scotland, Shona Simon, have issued a road map for employment tribunals in the 2022–23 financial year. It states that, subject to regional variations and to applications made in individual cases for a judicial decision on the format the hearing should take, the default position for the listing of hearings in 2022–23 will be that: (1) certain preliminary hearings, and applications for interim relief, reconsideration or costs/expenses will continue to default to video (and that is likely to become permanent), (2) judicial mediations will continue to default to video (but will be monitored to see whether that should become permanent), (3) final hearings of short track claims will, for the time being, continue to default to video (unless there is significant disputed evidence), (4) it is hoped that final hearings of standard track claims will return in greater numbers to being in-person, and (5) it is a ‘firm wish’ that final hearings of open track claims will default to in-person.

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. This was followed by a road map issued for the 2021–22 financial year.

What does the Road Map for 2022–23 say?

On 31 March 2022 the Presidents of the Employment Tribunals in England and Wales, Barry Clarke, and in Scotland, Shona Simon, published a road map for employment tribunals in the 2022–23 financial year.

Concerns

The Road Map for 2022–23 identifies a number of concerns, which it states pre-date the pandemic or are unrelated to it, such as:

• the turnover level of HMCTS staff remains a worry
• waiting times are too long in parts of the country
• in some locations, the physical estate is too small, too frail, or both
• ECM, the new case management system for employment tribunals introduced by HMCTS in the spring of 2021, has so far failed to produce reliable management data. There is no reliable information on matters such as the size of the outstanding caseload. This impairs strategic and operational decision-making.

Positives for 2021–22

However, the Road Map for 2022–23 does identify some positives:

• the legal officers recruited in 2021–22 have settled into their role and are delivering significant improvements in service. More have been recruited since, and there are plans to continue doing so
• in England in 2021–22 nearly 150 new fee paid Employment Judges were recruited and about 40 (mostly fee paid) judges of the First-tier Tribunal were cross-assigned
• the ‘virtual region’ in England and Wales has been going for nearly a year and has successfully handled hundreds of cases that would otherwise have been postponed for lack of a judge
• the adaptability of the employment tribunals judiciary has been shown by the high number of hearings taking place on video, and which would otherwise not be taking place; the two ET jurisdictions regularly spend 2,000 to 3,000 hours a week on the HMCTS Cloud Video Platform (CVP).

HMCTS reform

In relation to the HMCTS Reform Programme which, in the context of the employment tribunals, aims to take long-standing paper-based processes and make them digital, the Road Map for 2022–23 states that:

• instead of correspondence with tribunals, parties and their representatives would access their case information through a portal designed for that purpose e.g. MyHMCTS for legal representatives
• there will be an element of automation in the listing process, through a platform known as ListAssist (although listing policy will remain fundamentally a judicial concern)
• HMCTS intends for the replacement platform for CVP, the Video Hearings service, to be rolled out to the employment tribunals and other parts of the justice system during 2022
• HMCTS will offer digital support services to users, while paper channels will remain open for those unable to access the reformed systems
• the reformed system will be rolled out in stages. HMCTS intends for it to begin with open track cases involving unrepresented claimants
• there will be a new online service for submitting claims and responding to them
• much remains to be decided. System users will be informed and consulted on material developments via the national user groups.

Video hearings

The Road Map for 2022–23 states that there is a desire to reduce the percentage of hearings held remotely by video (which is currently over 90% in some regions) because the view remains that justice is best experienced by the vast majority of individual litigants in a face-to-face environment. However, the intention is to build on what has been learned over the last two years by recognising that a mixture of platforms (video, hybrid and in-person) will subsist.

The default position for hearings in 2022–23

The Road Map for 2022–23 recognises that the appropriate format for a hearing will remain a judicial decision, taken in the light of the tribunal’s overriding objective. It states that in every case it will be open to a judge to decide, in the interests of justice, that the default position set out below should not apply. It will always be possible for a party to apply to the tribunal with a request for their hearing to be held using a different format. Subject to that, and to periodic review, the default position on the listing of hearings is that:

• for preliminary hearings:
  • those listed in private for case management purposes will continue to default to telephone or video. This is likely to become permanent
  • those in public to determine a straightforward preliminary issue (eg time limits in an unfair dismissal case) will continue to default to video. This is likely to become permanent. Complex preliminary points requiring more detailed evidence (eg the application of TUPE, whether a person is disabled for Equality Act 2010 purposes, employment status) will, subject to local estate resources, make greater use of in-person hearings
  • those to consider an application to strike out or for a deposit order will continue to default to video. This is likely to become permanent
• applications for interim relief will continue to default to video. This is likely to become permanent
• judicial mediations will continue to default to video (although, in some parts of England, telephone mediation will continue). We will keep a close eye on outcomes to determine whether this becomes permanent
• final hearings of short track claims (unpaid wages, notice, holiday pay, redundancy pay etc) will, for the time being, continue to default to video. However, subject to local estate resources, there will be greater use of in-person hearings where the case involves significant disputed evidence
• final hearings of standard track claims (unfair dismissal) will vary. In most parts of Britain, as the physical estate recovers and requirements for social distancing are removed, we wish them to return in greater numbers to in-person, especially where the case involves significant disputed evidence. This will take time, because recovery will not be uniform. In parts of the country where the backlog is greatest, especially in London and the South East, final hearings of standard track claims will continue to default to video, to enable maximum use of judges in the virtual region
• our firm wish is for final hearings of open track claims (discrimination and whistleblowing) to default to in-person. This is achievable in Scotland, where it will be the default approach. However, it is not achievable in all parts of England and Wales. In some locations, such as London and the South East, the size of the backlog demands the increase in capacity that video can deliver, including through the virtual region. In other locations, such as Wales, there is a lack of hearing rooms. For the time being, and while we continue to press for more resources, there will be greater reliance on video in such locations, including hybrid formats. We repeat that, in all cases, north and south of the border, the parties will still be able to express their views at the preliminary hearing held for case management purposes, having regard to our respective guidance documents
• other hearings listed specifically to deal with applications for reconsideration or costs/expenses will default to video. This is likely to become permanent.

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.