InsightsInsight - Employment & HR - POSTED: June 19 2020
Preparing for an Employment Tribunal in light of COVID-19
The COVID-19 pandemic has had a significant impact on Employment Tribunal claims.
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This article covers key considerations and top tips for employers preparing for Employment Tribunals.
What does the tribunal service look like at the moment?
The COVID-19 pandemic has meant that cases listed for final hearings since the end of March 2020 have not gone ahead as intended.
To date most Employment Tribunal final hearings have been converted to case management hearings over the telephone to discuss how to progress the case. This has meant that the often long waits for cases to be heard in the tribunals are now even longer.
It has been announced that for final hearings listed after 26 June 2020, it may be possible for them to proceed. This will depend on a number of factors, however, and may look very different – including the use of cloud video platforms where appropriate.
Key issues when preparing for a case
If you currently have a final hearing listed after 26 June 2020 it is likely that you will have directions in place from the tribunal. These may relate to drafting and exchanging witness statements and disclosure of documents, for example.
It may be more difficult at this time to comply with directions due to employees being away from the workplace and documents being less easily accessible.
Top tip: Plan ahead and identify issues early on. It may be possible to seek postponement of the directions, but we advise against employers simply not complying.
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. Missing a response deadline can result in a default judgment against an employer.
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, employers should respond when they 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.
What about settlement?
Due to the delays which may now be inevitable to cases in the tribunals, many businesses are looking at alternatives to the tribunal process.
This may include looking at 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 and can be done through telephone or video conferencing.
Employers may also want to consider seeking to reach an agreed settlement with the employee. This is due to potential delays and additional financial resources likely to now be needed to reach a final hearing.
We are expecting to see an increase in employment tribunal claims. It is important that if you have a case coming up you keep an eye on the guidance on the Courts and Tribunals Judiciary website. This includes the useful FAQ’s which have been recently updated on 1 June 2020.
Upcoming webinar: Employment Tribunals in light of COVID-19
Our free webinar on Thursday 25 June will cover higher risk areas for Employment Tribunal claims caused by the pandemic, provide guidance on how to reduce the risk of such claims, and look at what to expect from the tribunal process going forward. We will also share our recent experiences and the situation within our local area. Register your place.
For further guidance on Employment Tribunals or other employment-related issues, get in touch with our Employment team today.
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