Earlier this week the government announced a series of relatively minor changes to the employment tribunal system in the UK, changes include the processes for responding to multiple claims and allowing Legal Officers (who are in fact not required to be legally qualified) to perform some tasks hitherto conducted by judges.
The employee representatives two changes in particular stand out.
Legal Officers
The changes to actions able to be taken by non-judges have been described by the government as “administrative tasks”. It has to be said whether that really is an accurate description is debatable since the powers include the ability to prevent a claimant pursuing a case at all. For example, the empowering legislation allows a claim to be rejected without a hearing because of defects on a claim form, deciding on whether to allow extensions to a respondent to provide a response, giving extensions of time to allow compliance on a case management order on the application of a party, and the decision to dismiss a claim on withdrawal (whilst generally not contentious this includes a requirement to impose a “interests of justice” test so is clearly more than just a box ticking exercise – (Rules of Procedure, Rule 52(b).
To be fair the new rules do allow a claimant to require the decision to be reviewed by a judge upon application (in a new Rule 10A(2) of the Rules) but this requires an on the ball claimant to be proactive and I fear cases will be wrongfully rejected and dismissed without proper prior scrutiny and it will not be too long before these cases find their way to the appeal courts.
This change will come into effect from 8 October. The takeaway for employee reps will be to ensure that any refusals of claim or rejections are dealt with promptly and an application made for referral to a judge within fourteen days of a rejection being sent out by HMCTS.
Early Conciliation
Despite some hard cases (and especially pertinent given the mistakes of HMCTS staff for causing these the government and the increasing power this order gives them) the mandatory requirement for a claimant to complete ACAS Early Conciliation before making most employment tribunal claims remains unchanged.
However, the current system whereby an a conciliation period of 4 weeks is extended by an additional 2 weeks if a settlement is likely is being replaced by a flat 6 week period. This will be shorter if there no interest in settlement by either claimant or respondent whereupon a early conciliation certificate will be issued the next day but where a settlement can be explored as an alternative to litigation then this period will always last for six weeks. Unlike the previous approach there is now no capacity to to extend the conciliation period.
This is hardly a ground-breaking change but is a sensible one that if nothing else will make the early conciliation process a little easier to navigate.
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Employment Writes 