Changes to Employment Tribunal procedure have been announced, with most of them due to come into force on 8 October 2020. Many of these are geared towards increasing the Tribunal’s capacity to deal with claims and are to be welcomed. One change means settled claims will no longer need to appear on the public register and may have a profound impact on the dynamics of settlement negotiations. Partner Charlie Thompson looks at what impact this may have on claims.
There are new Employment Tribunal rules to facilitate remote hearings, and soon judges from outside the Employment Tribunal will sit in certain cases. Similarly, certain decisions, which had previously been reserved for employment judges, can soon be decided by legal officers.
This is all against a backdrop of a long-standing backlog of claims in the Tribunal. The Ministry of Justice recently published data showing that in August 2020 there were approximately 45,000 outstanding claims and that the backlog has increased every week since the lockdown in March. These measures are intended to ease the backlog and the extreme pressure that afflicts the Tribunal system.
One of the other changes is to the online public register of Employment Tribunal decisions. The motivation behind this change is to reduce the administrative burden on Her Majesty’s Courts and Tribunals Service (HMCTS). At first, it might appear minor, but it might also have a profound impact on settlement negotiations.
From February 2017, all Employment Tribunal decisions have been published online. This was an obvious way of promoting open justice, and it is easier than ever for members of the public to access judgments. It has also acted, in some cases, as a further incentive for parties to settle, fearing that their names and the details of their disputes will forever be easily found on the internet. In a dispute, it may also serve as useful intelligence; prospective claimants can easily search their opponent’s track record in the Tribunal, and similarly, respondents can see whether the claimant is a serial complainant.
The public register of decisions does not only contain detailed judgments on cases that went all the way to a final hearing. The vast majority of Employment Tribunal claims settle before a hearing, but even those disputes appear on the register. Typically, such a decision would contain little more than the parties’ names and a one-line judgment stating that the “proceedings are dismissed following a withdrawal of the claim by the claimant”. It would not, from the decision alone, be clear what the claim was about, whether it had any merit or whether it settled for £0 or £1m. However, if an employer consistently appears on the register, it might indicate a willingness to settle and an aversion to defending claims to a final hearing.
However, all claims on the public register are assigned at least one “jurisdiction code”, to aid the categorisation and search functionality of the public register. The jurisdiction codes describe the type of claim: sex discrimination, breach of contract, whistleblowing, etc. Therefore, it is possible to determine what type of claim has been issued, even where the judgment is only one-line long.
The upshot of this is that even if a claim is settled on confidential terms, it will still be clear on the internet what type of claim was brought. It means that as soon as a claim was issued, the parties had, in one sense, passed a point of no return. Even if the claim were settled, it would end up on the public register. This can make claimants and respondents extremely nervous. Employees may be fearful of the potential stigma of being a whistleblower, and many employers will be uncomfortable about being accused of discrimination, even if the claim had no merit. Accordingly, parties can often feel under strong pressure to settle before the claim is issued. And, if the claim has already started, they may then feel it necessary to see it through to the end and obtain a judgment in their favour.
This is now all set to change. From 8 October 2020, it will no longer be necessary for claims “dismissed on withdrawal” to be entered onto the register. Overworked staff at HMCTS will no doubt breathe a sigh of relief, but this may also have a profound impact on the dynamics of settlement negotiations. Parties who had previously been nervous about leaving a paper trail of the claim on the internet may now have less of an incentive to settle early, so we may now see a further increase in claims, disputes running for longer and the number of early settlements reducing.
The regulations can be viewed here
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