The impact of Covid-19 on our Employment Tribunals

20th August 2020

The coronavirus pandemic has had a major impact on the Employment Tribunal system. Parties are likely to have their case heard remotely, or otherwise face a postponement of up to two years in some instances. Claims relating to furlough and/or a safe return to work are to be prioritised.

Many of our clients’ employment tribunal (ET) claims have been impacted by the coronavirus pandemic. Faced with an already-struggling system, our own experience of dealing with ETs up and down the country and that of many representatives, respondents and claimants alike has not been an easy ride.

In an attempt to manage the backlog whilst still following government guidance, many ETs have been quick to (whilst others a little slow to) put in place appropriate video conferencing technology for remote hearings. Some hearings are still taking place in person.

From our own experience and from keeping up to date with ET publications and attending webinars with the Presidents of the ET, the situation appears to change on a daily basis. Whilst there are variations up and down the country and variations with each ET, the net effect is that cases are progressing even slower than before.

Below we have set out a summary of the situation to date and what we envisage may be on the horizon, leading to some practical concluding points.

What steps has the ET system taken so far?

• On 23 March, it was announced by the Lord Chief Justice in a message on the review of court arrangements due to Covid-19 (here) that due to the acceleration of the spread of COVID-19 across the country, the courts (including ETs) will be making more use of telephone, video or other technology in order to continue as many hearings as possible remotely.

• On 24 March, the Presidents of the ET published a Presidential Direction (here) and a Presidential guidance on the conduct of ET proceedings during the Covid-19 pandemic (here). It was announced that all hearings due to take place between 23 March and 28 June 2020 would be cancelled and replaced by a telephone case management hearing, to be held on the first day of the listed hearing (in the event the hearing spanned over multiple days) in order to deal with re-listing and/or narrowing down the list of issues and/or to discuss the parties’ willingness to participate in judicial mediation.

• On 1 June, the ET Presidents issued a document setting out FAQs arising from the Covid-19 pandemic (here). This has since been reviewed and we are now on to the third edition. Appendix 1 contains a useful road map to assist parties who have hearings listed between June 2020 and December 2020.

• On 17 August, the HM Courts & Tribunal Service updated their Coronavirus update publication on Contacting HMCTS during the coronavirus outbreak. This explains that parties need not contact the ET regarding listed hearings (unless you wish to tell them about a change to your case) – probably advised in an attempt to enable ET clerks to deal with the backlog! It also confirms that the Employment Appeal Tribunal will not be holding any hearings in the immediate short term and when hearings do resume, they will initially be conducted by telephone, Skype or video link only.

What’s the current position?

• Since 29 June 2020 many hearings have been going ahead, at least remotely. The ETs are contacting parties in advance of the listed hearing to inform the parties whether or not the hearing will proceed and, if so, in what form. However, it is worth pointing out that some ETs are providing more notice than others – with some London ETs notifying parties how the hearing will proceed only a couple of days in advance.

• Remote cases are being heard by telephone or using video conferencing technology, mainly through the new software Cloud Video Platform (CVP). Some in-person hearings are also taking place if room size will allow (for social distancing) – either with all parties in attendance or as a “hybrid” hearing where some parties or witnesses attend by video link and the others in-person. We were recently informed by a Judge at Watford ET that some in-person hearings are already starting to take place there.

What’s likely to happen?

The March – June postponed hearings

• We understand that depending on the length of the hearing and depending on the ET in which it was listed to be held, postponed hearings could be listed any time between the New Year and 2022 (cases listed at the later date are more likely to be in the South East and London ETs in particular).

Prioritised cases

• The ETs have already started to receive claims that relate to Covid-19 i.e. the furlough scheme and concerns regarding health and safety. It is likely that these claims will continue to flood the ET system in the coming months. However, the Presidents’ FAQs do confirm that Covid-19 related whistleblowing claims and health and safety cases will be prioritised (and rumours have it, as early as autumn of this year).

• What’s more, the furlough scheme will end on 31 October 2020. While some employees will return to work as usual, others may be placed at risk of redundancy. We hear daily of employers in the retail and hospitality sector who have already been hit hard by the pandemic – with insolvencies and redundancies hitting the press, we anticipate that these represent only a small number of employers who will face the same hardship this year (and likely into next). Redundancy proposals may lead to an increase in ET claims and this will inevitably impact the ET system too.

Concluding thoughts

If you have a claim going through the ET system now (or believe you may do in the not so distant future), we anticipate that you may have a long road ahead of you. Delays are here to stay so unless you’re minded to seek early resolution, we would recommend getting the basics done (collating documents and securing witness statements) while it is fresh in witnesses’ minds and whilst the relevant people are with the business (in case of any Covid-19 related redundancies or departures).

Please feel free to contact a member of our employment team below or your usual Walker Morris contact should you have any queries regarding a case you have (or anticipate you may have) in the ETs.