Changing the Employment Tribunal rules – will it ease the backlog?

Rules in force from today

New rules for Employment Tribunals come into force today across England and Wales which allow a range of judges from the civil courts to sit in employment tribunals. In addition, certain tribunal functions previously carried out by judges, will now be delegated to 'legal officers'. Legal officers will, amongst other things, be able to

• decide whether to allow an employer a longer period of time to respond to a claim
• order that the employee or employer provide more information about their case, and
• decide whether a claim should be struck out for non-compliance with early conciliation requirements.

Rules in force from 1 December

Further changes are lined up for 1 December 2020, with the mandatory period provided for the ACAS early conciliation process set to be extended from one month to six weeks, although parties will no longer be able to extend the conciliation period by 14 days. ACAS conciliators will also have the authority to correct errors in the early conciliation form during the early conciliation process.

According to sources, the backlog of cases waiting to be heard at employment tribunals reached 45,000 in August 2020. With government support schemes grinding to a halt over the next quarter, there is expected to be a further increase in the number of claims, as RWK Goodman Partner Malcolm Gregory explains in a recent article in People Management magazine.

"The number of claims is set to rise significantly now and we will likely see a lot of claims relating to unfair redundancy, changing terms and conditions unlawfully and contractual issues around pay and benefits."

Today's new tribunal rules are sure to reduce an unnecessary administrative burden on judges while also increasing the number of judges available to deal with hearings. With December's measures allowing parties more time to resolve disputes before getting to a hearing, the tribunal system looks more flexible and streamlined in the face of what is shaping up to be a significant test of its functionality over the next few years.

What's the catch?

There are, however, some concerns around the impact of non-employment judges deciding on employment cases, together with legal officers making significant decisions that will affect how cases proceed. It's possible that we could see an increase in appeals to the Employment Appeal Tribunal, from parties seeking to overturn decisions made by non-employment judges who are not experienced in employment law. .Parties also have the right to challenge the case management decisions of legal officers, and ask for an employment judge to reconsider the matter afresh. This could mean that in some cases, more Tribunal resource is taken up under the new rules.

The intention of the new rules is clear, but only time will tell as to whether they help reduce the backlog.

Our advice for employers in the wake of the new regulations is simple – take advice at an early stage. It may cost initially, but it could save a lot of time and money in the long run.