Employment Tribunal practice and procedure for 2022/2023
Over the last couple of years, the Employment Tribunals have faced a number of logistical challenges due to Covid, in how it deals with cases. This has resulted in the Presidents of both the England & Wales and Scotland Employment Tribunals publishing a ‘road map’ each year about they will handle the practical challenges of managing tribunal litigation.
On 31st March 2022, the Presidents of the two jurisdictions have again published their road map for the 2022/2023 financial year and some of the key default positions that the tribunal will adopt when it comes to listing hearings are set out below.
- Case management hearings will continue to default to being conducted via telephone or video, instead of being in person.
- Open preliminary hearings in public to determine a straightforward preliminary issue will continue to default to video hearings. However, where the issues that need to be determined are more complicated (for example, if the tribunal is determining whether the claimant has a disability), the aim will be to make more use of in-person hearings, subject to individual tribunal resources.
- Applications to strike out a claim or response or for a deposit order will continue to default to video hearings.
- Applications for interim relief, which can sometimes occur in certain types of automatically unfair dismissal cases (where a tribunal can grant an employee interim relief by ordering the employer to continue employing the employee until the case is finally determined) will continue to default to video hearings.
- Final hearings of what are referred to as ‘short track’ claims (which generally deal with simple claims for unpaid wages, holiday pay, redundancy pay etc.) will, generally, continue to default to video hearings.
- Final hearings of what are referred to as ‘standard track’ claims (the most common of which are unfair dismissal claims) will vary. The preference is now for a greater return to in-person hearings (where the tribunal’s resources permit), especially in cases where there is a lot of disputed evidence. However, as the London and the South East tribunal areas still have a large backlog of cases, final hearings of standard track claims will continue to default to video hearings.
- Final hearings of ‘open track’ claims (these are the more complex cases which usually involve discrimination and whistleblowing) will default to in-person hearings in Scotland. However, in England and Wales at the moment, there will continue to more use of video or hybrid hearings due to the fact the tribunal still does not have the resources to move back to in-person hearings by default at present.
As can be seen from the above, the tribunal remains under a certain amount of pressure to deal with all hearings in-person, hence the continued reliance on video hearings. However, despite the guidance, it still remains possible for the parties to apply for a different format to the default position, although there is no guarantee that the application would be successful.
