ELA comment on the Amended Employment Tribunal Constitution and Rules Regulations

25 September 2020

Over the past few months ELA has been confidentially consulted by stakeholders in respect of a number of matters relating to changes to and or the operation of employment law and employment justice. ELA’s non-party political technical expertise has been sought to help to ensure that workplace justice works in the interests of employees and employers. 

BEIS has just given ELA permission to share our response to the confidential consultation that preceded amendments to the Employment Tribunal Procedure Rules of Procedure 2013 to help Employment Tribunals meet the challenges of the pandemic. The response to the consultation is on the ELA website here.

See ELA’s IDS news bulletin here.

Link to Regulations: https://www.legislation.gov.uk/uksi/2020/1003/contents/made

ELA broadly welcomes the new Regulations. They take heed of ELA’s position in a number of areas, notably:

1.  In relation to Legal officers:

1.1  ELA’s comments that applications to amend ET3s and applications for further information should not be tasks assigned to Legal Officers was heeded.

1.2  Reg 10A(2) has fully addressed ELA’s concern that there should be a right to ask that a Legal Officer’s decision be considered afresh by an Employment Judge. 

1.3  ELA’s comments on the importance of visibility of an Employment Judge’s involvement in most aspects relating to insolvency have been heeded, as Reg 10B(g) is narrower than was originally proposed in the consultation. 

2. ELA was supportive of

2.1  The change to Rule 12  (which prescribes the circumstances in which a claim form must (or may) be rejected), allowing the efficient correction not simply of minor errors but now errors in respect of which it would not be in the interests of justice to reject a claim.

2.2  Rule 16 (to allow for multiple responses on the same form) which addresses ELA’s concerns that Respondents should be able to decide whether or not they wish to use a single response form.

2.3   The changes to Rules 19 and 21 tidying up the language and simplifying the progress of cases. 

2.4  The relaxation in Rule 44  (inspection of witness statements), which is consistent with the ELA Covid-19 Working Party recommendations. 

2.5 Rule 46 (hearings by electronic communication) but ELA noted the issue of how to deal with warnings as to the prohibition of recordings remains a practical matter that needs to be addressed.

However, ELA has continuing concerns in respect of some sections. These will need careful implementation:

1.  Non-Employment Judges being able to sit as employment judges: ELA’s concerns have not been reflected in that the cross-deployment of judges to Employment Tribunals is permitted. However, ELA takes great comfort from the fact that the Scottish or the English and Welsh President has to consent to the appointment of a Judge onto their Tribunal panel in their respective jurisdictions (Reg 8(2C)(b)). For instance Employment Tribunal President Scotland, Judge Simon stated on 24 September 2020 that such judges will be experienced and skilled in Employment law before that consent is given by her. 

2. Legal officers /“Tribunal Caseworkers”: there currently appears to be no distinction in the legal officer designation between Caseworker and Senior Caseworker, as set out in the BEIS consultation. ELA’s representations sought to ensure that suitably experienced Senior Caseworkers should undertake certain of the tasks. 
Whilst ELA was supportive of the amendment to Rule 67 (exempting the judgments of cases dismissed on withdrawal under rule 52 from the requirement to be entered on the public register) we considered that the principles of open justice required that this amendment should only be a temporary measure during the pandemic.

3. ELA is very grateful to Emma Burrows, Jonathan Chamberlain, Robert Davies, Felicia Epstein and Joanne Owers who worked under the leadership of Jennifer Sole and David Widdowson to respond to this consultation in a short time frame and in difficult circumstances.

ELA’s Legislative and Policy Committee continues to engage cooperatively and apolitically with all stakeholders to ensure that employment law is as good as it can be, that access to justice is preserved and maintained and that members’ voices are heard.