Road map to recovery: ET bodies share 2021 – 2022 vision with 'realistic optimism'

Heavy reliance to be placed on video and telephone hearings to clear post-pandemic backlog

The Tribunals Judiciary and Employment Tribunals (Scotland) have issued a road map for 2021 – 2022, which aims to reduce the case backlog caused by the pandemic. The use of virtual hearings will remain essential “for at least two years.”

The road map acknowledged a “sharp increase” in outstanding cases and wait times, particularly in London and the South East. However, it also suggested “unexpected efficiencies” have emerged, leading to enhanced access to justice, in some cases. 

The road map stated, generally “justice is best experienced in a face-to-face environment” but “In respect of some of the innovations of the last year, we should not turn back. We must… keep hold of the good." It said the future will involve more use of technology. The road map sets out steps that have been taken, as well as plans to “rebuild… operational resilience.” 

A new case management software system, Employment Case Management (ECM), is being rolled out to replace Ethos, which “regularly failed, impacting negatively on administrative efficiency.” Rollout has “taken longer than… hoped,” but should be complete by the end of May. Its main aim is to facilitate remote access by staff, which the road map acknowledges “substantially impaired… performance in 2020.” 

The responsibilities of 16 new 'legal officers' due to start mid-April, are detailed. They will determine matters within their delegated powers and will support “case progression”, reviewing imminent cases and checking issues typically only considered “at the last minute”, such as whether the time allocated remains appropriate.

In late April, a “virtual region” will be launched in England and Wales, staffed by approximately 100 existing employment judges. Video hearings will hear cases from any region. In its first year, it will only hear cases listed across London and the South East, which account for “well over half” of all outstanding cases.

Later in spring, an “expressions of interest exercise” will be launched, under which judges from other courts and tribunals with employment law expertise may act as employment judges. This will also introduce “flexible cross-deployment” of the employment tribunal (ET) judiciary between Scotland and England and Wales.

Video hearings are described as “our best ally” to reduce caseload and a new platform is currently being piloted in the South West. The caseload remained “static” in the first quarter of 2021 and the road map credits video hearings for this. Viewpoints on video hearings are reportedly “divergent”, but one point of consensus is that they “are more tiring and take longer.” 

The road map sets out a ‘default position’ for how hearings will be held but emphasises each judge will determine whether to adopt the default position. Parties may write to the relevant ET office to explain why they would like a different hearing format.

The ‘default position’ for cases yet to be listed in 2021 – 2022 is: 

•    Preliminary hearings listed in private for case management purposes will default to telephone or video.
•    Preliminary hearings in public to determine a preliminary issue will default to video.
•    Preliminary hearings to consider an application to strike out or for a deposit order will default to video.
•    Applications for interim relief will default to video.
•    Judicial mediations will default to telephone or video.
•    Final hearings of short track claims will default to video.
•    Final hearings of standard track claims will vary. In most cases, they will return to in-person. However, in London and the South East they will default to video.
•    Final hearings of open track claims will vary. In most cases, they will default to in-person. However, in London and the South East, there will be a greater reliance on video, including hybrid formats. 
•    Hearings listed specifically to deal with applications for reconsideration or costs/expenses will default to video.

Law Society of England and Wales president, I. Stephanie Boyce, described the road map as “encouraging”, while acknowledging “the truly worrying backlog of more than 51,000 claims.” 

She added, “The pandemic has exacerbated the backlog of claims and these are only likely to increase due to the economic fallout caused by covid-19 and resultant employment issues.” 

She also highlighted that there will be delays in the emergence of new case law.