Employment tribunals: Second review of Presidential coronavirus (COVID-19) direction of 19 March 2020

Employment tribunals: Second review of Presidential coronavirus (COVID-19) direction of 19 March 2020

Employment Tribunals listing direction review outcome (Update 29 May 2020)

On the morning of Thursday 19 March 2020, the original version of the Presidential Direction was received by us from the personal secretary to the then President of the Employment Tribunals in England and Wales, Judge Brian Doyle, as we reported on that day (see News analysis: All in-person ET hearings converted to case management by phone etc from Monday 23 March).

On the morning of Tuesday 24 March 2020, we received a further communication from the President’s personal secretary (as we reported on that day—see News analysis: Employment tribunals: Presidential coronavirus (COVID-19) direction of 19 March 2020 amended), which provided an amended version of that direction, which is worded as follows:

‘In view of the rapidly changing circumstances created by the Covid-19 pandemic, the Presidents of the Employment Tribunals in England & Wales and in Scotland have directed that from Monday 23rd March 2020 all in-person hearings (hearings where the parties are expected to be in attendance at a tribunal hearing centre) listed to commence on or before Friday 26th June 2020, will be converted to a case management hearing by telephone or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing. This will provide an opportunity to discuss how best to proceed in the light of the Presidential Guidance dated 18th March 2020, unless in the individual case the President, a Regional Employment Judge or the Vice-President directs otherwise. If the case is set down for more than one day then parties should proceed on the basis that the remainder of the days fixed have been cancelled. For the avoidance of doubt, this direction also applies to any hearing that is already in progress on Monday 23rd March 2020 and, if not already addressed before then, the parties may assume that the hearing on that day is converted to a case management hearing of the kind referred to above. In person hearings listed to commence on or after 29th June 2020 will remain listed, in the meantime, and will be subject to further direction in due course. The parties remain free to make any application to the Tribunal.

This Direction will be subject to ongoing review and in particular will be reviewed on 29th April 2020 and 29th May 2020 to take into account the circumstances as they then stand in connection with the Covid-19 pandemic.’

One of the effects of that amendment was that it was indicated that, in order to take into account the circumstances as they develop in future in connection with the coronavirus (COVID-19) pandemic, the whole of the direction of 19 March (as amended on 24 March):

  • would be subject to ongoing review, and, in particular

  • would be reviewed on 29 April 2020 and 29 May 2020

On the afternoon of 30 April 2020, we received a communication from the then President of the Employment Tribunals in England and Wales, Judge Brian Doyle, to let us know that the first of those two reviews (of 29 April 2020) had been carried out. Following that review, the Presidents of Employment Tribunals (England and Wales and Scotland) took the decision that the Direction of 19 March (as amended on 24 March and set out in full above) would remain in force in its existing form. For further information, see News analysis: Employment tribunals: Presidential coronavirus (COVID-19) direction of 19 March 2020 reviewed.

On 29 May 2020, notification was posted on the Courts and Tribunals Judiciary website that the Presidents of Employment Tribunals (England and Wales and Scotland) had carried out the promised second (29 May) review of the Direction of 19 March (as amended on 24 March). That notification states:

‘Following on from that review the Direction remains in force in its current form. The Presidents will shortly issue a ‘road map’, appended to an amended FAQ sheet, which provides further detail about the listing and methods of conduct of ET hearings over the next few months.’

What impact does this second review have?

As noted above, following the second joint review by the two Presidents, a decision was again taken that, for now, the Direction of 19 March (as amended on 24 March and set out in full above) remains in force in its current form.

The consequences of this are:

  • hearings listed to commence on or before Friday 26th June 2020 will continue to be converted to a case management hearing by telephone or other electronic means which will take place (unless parties are advised otherwise) on the first day allocated for the hearing

  • hearings listed on or after 29 June 2020 will remain in hearing lists

  • arrangements will be made to contact parties/representatives in these listed cases so that an assessment can be made by an Employment Judge of the most appropriate method of conducting the hearing. For example, that could be:

    • entirely in-person

    • entirely by remote means, or

    • a combination of such methods

  • at that time any special measures which require to be put in place in connection with the conduct of the hearing will also be considered

  • parties remain at liberty to make any application to the tribunal that they consider appropriate at any time

Road map

The notification regarding the second review also states that the Presidents will shortly issue a ‘road map’. This will be appended to an amended version of the existing FAQs document (which was originally published on 3 April 2020; see News analysis: FAQs arising from the COVID-19 pandemic issued by ET Presidents). As the notification says, this road map will provide further detail about the listing and methods of conduct of ET hearings over the next few months. We will report again as soon as it is available.

For full information regarding the operation of employment tribunals during the coronavirus (COVID-19) pandemic, see Practice Note: Operation of employment tribunals during the coronavirus (COVID-19) pandemic.

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