7th April 2020

What Employers Need to Know About Employment Tribunals During Coronavirus Pandemic

We’re all trying to adapt to the ‘new normal’ and for those employers responding to Employment Tribunal claims (Respondent) brought by employees (Claimant) and expecting to attend an Employment Tribunal Hearing between now and 26th June 2020, the new norm is very different indeed.

What is the new norm for Employment Tribunals?

The Presidents of the Employment Tribunals in Scotland and in England and Wales published their ‘Presidential Guidance in Connection with the Conduct of Employment Tribunal Proceedings During the Covid-19 Pandemic’ on 18th March 2020 (Guidance). They have since published ‘FAQs arising from the Covid-19 pandemic’ (FAQs) which provides helpful information to anyone dealing with an Employment Tribunal claim.

In short, different arrangements will apply to all cases where an in-person hearing was due to take place in any of the Employment Tribunals in Scotland and in England and Wales between 23rd March and 26th June. An in-person hearing is a hearing where the Respondent, Claimant and/or their representatives are expected to attend in person at a Tribunal Hearing centre).

The Guidance states:

  • All in-person hearing will be converted to a case management hearing by telephone or other electronic means. Normally, the function of a case management hearing is to do no more than make sure that the Respondent and the Claimant are cooperating with one another and the Tribunal in order to ensure that the case is prepared properly for Hearing.
  • That case management hearing which will take place on what would have been the first day of the in-person hearing.
  • If the in-person hearing was scheduled (or set down) for more than one day then the remainder of the days are cancelled.

For example, a Final Hearing on the merits of the case, where the Respondent, the Claimant and their respective representatives and witnesses were expected to attend, set down for four days and commencing on Monday 27th April will instead be converted to a case management hearing on Monday 27th April and the remaining three days will be cancelled.

It also applies to any in-person hearings already in progress, for example, Monday 27th April is day three (the first two days having taken place prior to 23rd March). Day three will be converted to a case management hearing and day four will be cancelled.

Does this mean a lengthy delay in dealing with the case?

It is hoped that cancelled in-person hearings will be rearranged as quickly as possible but there may some that are delayed by a significant period of time.

For those in-person hearings due to start after 26th June 2020, it is also hoped they can proceed as planned but the Presidents are regularly reviewing matters and will provide further updates on 29th April and 29th May 2020.

Is there anything required to be done in relation to the case management hearing?

The FAQs provide the following helpful information:

  • It would assist Employment Judges if Respondents and Claimants (or their representatives) would complete the correct case management agenda forms and exchange them with each other and the Employment Tribunal in advance of the case management hearing. These can be found online.
  • If Respondents or Claimants were required to by the Employment Tribunals to do certain things by a date between 23rd March and 26th June, in preparation for in-person hearings (Orders and Directions), for example provide information or exchange documents, they are no longer required to do these things. However, if the date by which the Order or Direction has to be complied with falls after 26th June then they must still be complied with.
  • If the case management hearing is a video hearing, those attending must familiarise themselves with the rules of etiquette applying to such hearings.

Will ET1s and ET3s be treated differently during the pandemic?

The FAQs provide important information about ET1s (claims forms) and ET3s (response forms):

  • There are three methods by which Claimants can present ET1s: online submission service provided by HMCTS; by post to a designated address (Glasgow in Scotland); and by hand-delivery to a designated regional office. Some regional offices are closed meaning ET1s should be presented by one of the other two methods. ET1s cannot be sent by email, fax or any other method.
  • There are strict time limits for presenting ET1s. If a claim is presented late, an Employment Judge may allow it to proceed but usually not without a hearing arranged for that purpose. A coronavirus related reason might explain why an ET1 has been presented late but it should not be assumed that the Employment Judge will accept it as a reason for allowing the ET1 out of time.
  • Respondents can present ET3s by the same three methods as well as by email and fax. However, there is a 28-day deadline. The Presidents recognise that the pandemic may have an impact on when and how Respondents can take legal advice about defending claims or contact individuals about whether what is said in ET1s. They also recognise that some have been required by Government policy to close and incoming post and email correspondence may not be monitored. That said, the Presidents do not consider it appropriate to extend the 28-day deadline generally for all cases. Instead, Respondents should present their ET3 as soon as they can together with an application to extend the deadline and whether or not it will be accepted out of time will be considered on a case by case basis.

Employment Tribunals will continue to send ET1s to the address provided for Respondents by Claimants on the ET1s. However, employers can apply to the Employment Tribunal office in Glasgow to copy ET1s to a dedicated inbox or to a dedicated central postal address. The Employment Tribunal will try to maintain a database for this purpose.

For more advice please get in touch with a member of the Blackadders’ Employment Team.

Donna Reynolds, Partner
Accredited by the Law Society of Scotland as a Specialist in Employment Law & Discrimination Law
Employment Law
Blackadders LLP
@EmpLawyerDonna

www.blackadders.co.uk

 

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