Changes to the Employment Tribunal & Early Conciliation Rules

September 23, 2020, By

A raft of technical reforms have recently been made to the employment tribunal rules and early conciliation rules.

The aim of these changes is to increase the flexibility of the employment tribunal system and maximise capacity amidst COVID-19 and increasing tribunal caseload.

The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 SI 2020/1003 (the “New Rules”) were introduced into Parliament on Thursday 17 September 2020 and make certain reforms to the tribunal rules and the rules on early conciliation.

The amendments affecting the tribunal system will come into force on 8 October 2020. Those that affect early conciliation will come into force on 1 December 2020.

What to Expect 

  1. Non-employment judges and legal officers

Non-employment judges will now be able to sit in employment tribunals if they meet certain suitability criteria. The New Rules also allow legal officers to perform certain tasks that were previously reserved for employment judges, including certain interim applications and dismissal of claims which are subsequently withdrawn.

A party has a 14-day window within which to apply for a matter to be re-considered by an employment judge if they are not satisfied with the determination by the legal officer.

  1. Witnesses and witness statements

Witness statements no longer have to be available for inspection by the public during the course of a virtual hearing. The New Rules will now allow witness statements to be inspected outside of the duration of a virtual hearing to allow for greater flexibility.

The strict requirement that members of the public must see any witness as seen by the tribunal has also been relaxed, providing for members of the public to see a witness as seen by the tribunal only ‘so far as practicable’.

  1. ET1s and ET3s

Multiple claimants may now use the same ET1 form where the factual matrix to their claim and the legal issues to be addressed are related or similar. A mirror amendment has also been made in relation to the ET3 which allows multiple responses to be filed using the same form.

In addition, an incorrect early conciliation number will no longer be automatically fatal to the validity of a claim form. The New Rules allow an employment judge to allow the claim in the interests of justice, where the claimant has made a mistake in relation to the early conciliation number.

  1. Trial Listing

The tribunal may now list a claim for a hearing prior to the ET3 deadline provided that the listed date is no sooner than 14 days after the ET3 deadline.

In other words, it will be possible for a matter to be listed for a hearing merely upon receipt of a claim by the tribunal. The case management benefits of this amendment are quite evident, affording the tribunal greater speed in setting hearing dates.

  1. Early Conciliation

Under the current rules, the length of time within which a conciliation officer is under a duty to promote settlement is one calendar month.

From 1 December 2020, this length of time will now increase to six weeks. A conciliation officer will, however, no longer have the power to extend this period of time even where they consider that there are reasonable prospects of achieving settlement. That said, parties can of course still continue to negotiate directly, via legal representatives or via ACAS.

Contact us with any questions

If you have any queries or require clarity, we are here to help. The team can provide expert guidance on tribunal rules and early conciliation rules as they change and come into effect.

Call us on 0161 969 3131, or fill in our contact form and one of the team will be in touch.