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Minutes of the recent England and Wales employment tribunals national user group meeting, and the Scottish user group meeting have been published, highlighting the adverse effects of the Covid-19 pandemic on the tribunal service.  Several measures to combat these effects are currently being put in place.

More employment judges to be recruited

57 new salaried employment judges started work in the last 18 months, 287 new non-legal members took up office, and 67 new fee-paid employment judges have received their letters of appointment in England and Wales.  In addition recruitment exercises have been carried out to recruit approximately 50 new fee-paid employment judges and 25 full-time salaried employment judges in England and Wales.  A successful business case has also been submitted to the Lord Chancellor to enable all employment judges turning 70 in the current financial year to have their appointments extended for a further year.

Increase in/backlog of claims

In England and Wales there was already a backlog of 30,687 single cases in early March 2020 which increased to 36,616 outstanding claims in England, Wales and Scotland as at 28 June 2020.  This is expected to increase by 1% a week and surpass 40,000 by late summer/autumn.

Only one third of employment tribunal space can currently be used due to social distancing requirements, but the Cloud Video Platform (CVP) has provided a temporary solution.  There are 150 CVP rooms available to employment tribunals in England, Wales and Scotland and these are being used for remote hearings and judicial mediations.  Several regions have already managed multi-day full-panel hearings on CVP, or in person, meeting social distancing requirements.

There are regional differences with the South East England region (listing cases of more than two to three days for hearings in 2022) and London South region (listing for mid to late 2021) struggling the most to meet demand. All other regions are listing for the first half of 2021.  A potential option being examined to address the backlog is extending operating hours.

Increases in claims arising from the winding down and closure of the CJRS were also expected (also pandemic-related claims relating to health and safety and whistleblowing, as well as unfair redundancy dismissal claims and contested protective award claims).

The Presidents have advised that health and safety detriment, unfair dismissal or protected disclosure claims would be treated as priority claims and triaged for early determination as they are public interest cases and concern whether it is safe for employees to return to work during the pandemic.

New Practice Direction and Presidential Guidance to be issued on remote hearings in England and Wales

These are currently being produced for England and Wales and will deal with the conduct of remote and in-person hearings during the pandemic.  The Presidential guidance will deal with electronic bundles.  Scotland has already produced a Practice Direction and Presidential Guidance on remote hearings.

Recording of hearings

CVP provides a mechanism for the audio recording of hearings, and HMCTS has advised that a pilot for recording hearings is being carried out in Scotland and Wales.  The President in England and Wales is planning to introduce a Practice Direction on the issues surrounding the recording of hearings.