Employment Tribunals “Road Map” 2022/2023

The Presidents first published a ‘road map’ for listing and hearing cases in June 2020, as part of the strategy for dealing with the challenges presented by the COVID-19 pandemic. A road map for 2021/22 was issued in March last year. The Presidents have now issued a further document explaining what they anticipate will happen in the 2022/23 financial year. They note, among other things, that there cannot be a return to the pre-2020 ‘normal’ in the employment tribunals, since the ‘normal’ ways of working will be changed permanently by HMCTS reform, regardless of the impact of the pandemic. However, the Presidents state that they wish to reduce reliance on video. They note that the majority of hearings across Great Britain are still taking place on a fully remote basis, and that, in some parts of the country, over 90% of hearings are still by video. The Presidents state that they want to bring that percentage down, noting that it is driven chiefly by COVID-19 restrictions or estate limitations. However, they accept that, in some cases, a video hearing reflects the preferences of the parties and their representatives, and can be less costly and less disruptive to the lives of those participating.

The new road map sets out the default position for listing cases in 2022/23:

• preliminary hearings listed in private for case management purposes will continue to default to telephone or video. This is likely to become permanent
• preliminary hearings in public to determine a straightforward preliminary issue (e.g. time limits in an unfair dismissal case) will continue to default to video. This is likely to become permanent. Complex preliminary points requiring more detailed evidence (e.g. the application of TUPE, whether a person is disabled for Equality Act purposes, employment status) will, subject to local estate resources, make greater use of in-person hearings
• preliminary hearings to consider an application to strike out or for a deposit order will continue to default to video. This is likely to become permanent
• applications for interim relief will continue to default to video. This is likely to become permanent
• judicial mediations will continue to default to video (although, in some parts of England, telephone mediation will continue). The Presidents will keep a close eye on outcomes to determine whether this becomes permanent
• final hearings of short track claims (unpaid wages, notice, holiday pay, redundancy pay, etc) will, for the time being, continue to default to video. However, subject to local estate resources, there will be greater use of in-person hearings where the case involves significant disputed evidence
• final hearings of standard track claims (unfair dismissal) will vary. In most parts of Britain, as the physical estate recovers and requirements for social distancing are removed, the Presidents wish them to return in greater numbers to in-person, especially where the case involves significant disputed evidence. This will take time, because recovery will not be uniform. In parts of the country where the backlog is greatest, especially in London and the South East, final hearings of standard track claims will continue to default to video, to enable maximum use of judges in the virtual region
• the Presidents’ firm wish is for final hearings of open track claims (discrimination and whistleblowing) to default to in-person. This is achievable in Scotland, where it will be the default approach. However, it is not achievable in all parts of England and Wales. In some locations, such as London and the South East, the size of the backlog demands the increase in capacity that video can deliver, including through the virtual region. In other locations, such as Wales, there is a lack of hearing rooms. For the time being, and while the Presidents continue to press for more resources, there will be greater reliance on video in such locations, including hybrid formats
• other hearings listed specifically to deal with applications for reconsideration or costs/expenses will default to video. This is likely to become permanent.

The road map notes that, in every case, it will be open to an employment judge to decide that the default position should not apply. Furthermore, it remains open to parties to apply to the tribunal for a different approach, which may result in a change of format or a hybrid approach in which one or more of the participants (including members of the panel) joins remotely.

Link to road map: https://files.constantcontact.com/a61bf256301/fdc5153b-1c5b-434c-87ce-a426df124769.pdf