Employment tribunals – an update for employers

This article covers the latest information for employers preparing for employment tribunals.

What does the tribunal service currently look like?

The COVID-19 pandemic has meant that cases listed for final hearings since the end of March 2020 have not gone ahead as intended in-person hearings.

Initially, employment tribunal final hearings were being converted to case management hearings over the telephone to discuss how to progress the case. This meant that the long waits for cases to be heard in the tribunals have now been made even longer.

Employment tribunal statistics for the period between January to March 2021 show that receipts of individual claims have now decreased by 13 per cent compared to the same period a year earlier. However, there are still large volumes of cases yet to be resolved in the tribunal system. It is also expected that tribunals could see an increase again as the furlough leave scheme comes to an end.

Since June 2020,  many final hearings have gone ahead as remote final hearings using a cloud video platform.

In March 2021, guidance was issued by the presidents of the employment tribunals in England and Wales and Scotland in the form of a road map for 2021-22. The guidance stated that in London and the south east, final hearings taking place remotely will be the default position in most cases for this period. This is due to the backlog of cases in this area.

How to avoid employment tribunal claims

Unfair dismissal was the most common claim disposed of by the tribunal between January to March this year.

If a business is considering restructuring, the process should be carefully planned and alternatives to redundancies carefully considered.

Top tips

• Our webinar on managing restructuring and redundancies provides useful guidance on how to manage the redundancy process, and identifies common pitfalls to look out for when planning and developing restructuring and redundancy proposals.
• Clear communication and dealing with concerns at an early stage is important to avoid issues escalating at a time where there may be a lot of changes for the workforce. This includes bringing staff back from furlough, moving to a hybrid working arrangements and possible restructures.
• Don’t assume that the current situation means that normal procedural rules can be ignored. The same rules still apply and you will need to follow fair processes before considering dismissal or making changes to terms and conditions.

Key issues when preparing for a case

Where a claim is brought by an individual, you should be mindful of how preparing to defend a case. This may be different as a result of the pandemic.

Not receiving pleadings or being able to respond

With fewer people in the workplace, it is possible the claim forms may get missed. It may also be more difficult to contact people internally to discuss the contents of the claim form. Please note that missing a response deadline can result in a default judgment against you.

Top tip

The employment tribunal guidance states that it may be appropriate for some employers to send a ‘holding’ ET3 response form where it is not possible to respond in full.

If a claim form has been missed, you should respond when you are in receipt of the claim form and not fail to respond at all. It will then be for the tribunal to decide whether to allow the response.

Not adequately preparing for a remote hearing

Three employment tribunal presidential guidance documents were issued on 14 September 2020.

Guidance is set out in these documents on how parties should prepare for these hearings. This includes how to lodge and produce documents as well as what will be expected on the day of the hearing.

Parties involved in a claim can express their views on what format is appropriate for the case. We recommend seeking advice if you are uncertain.

Top tip

If you have an employment tribunal claim to defend, ensure you are clear on how the hearing will be held. You should also read the guidance on how that format of hearing will work in practical terms.

What are the alternatives to a tribunal hearing?

Due to the delays which may now be inevitable to cases in the tribunals, many businesses are looking at alternatives to the tribunal process.

Alternatives may include alternative dispute resolution, such as judicial mediation. This involves bringing the parties together for a mediation at a private preliminary hearing before a trained employment judge who remains neutral and tries to assist the parties in resolving the dispute.

In the current circumstances, this route may result in a quicker resolution. It can be done through telephone or video conferencing.

You may also want to consider seeking to reach an agreed settlement with your employee. This is due to potential delays and additional financial resources likely to now be needed to reach a final hearing.

Further support

For further guidance on employment tribunals or other employment-related issues, take advantage of our free 30-minute initial consultation for businesses. You can book an appointment at a time that suits you.

This content is correct at time of publication