July 20, 2021

Roadmap strategy required for the employment tribunal system…and soon

The ELA Legislation & Policy Committee, who are responsible for monitoring legislative and other developments in employment law, ran a survey from April to May 2021, gathering feedback from around 25% of their lawyer membership. Worryingly, the results showed that:

  • over 40% of lawyers are waiting more than a year for cases to come to the Employment Tribunal;
  • over 80% of cases (with significant delay to final hearings) concern events that happened at least six months ago;
  • over 90% of final hearings are being listed at least six months or more into the future (some even into 2023).

However, the delays do not stop there. When compared with March 2020, almost all respondents reported that tribunals take longer to handle administrative tasks such as answering the phone, deal with urgent applications and make orders and judgements. According to the Ministry of Justice, the number of outstanding single claims in England, Wales and Scotland reached 45,000 in January this year with the number of outstanding multiple cases rising from around 5,000 in March 2020 to around 6,300 in 2021. Meanwhile, Citizens Advice has supported over 250,000 people with employment issues since the pandemic broke out in March last year.

In short, the pandemic has been disastrous for the employment tribunal system.

Interestingly, the survey reported that remote hearings were considered to be successful despite 60% of respondents stated that they experienced communication issues with their clients during remote hearing. One respondent commented: “Virtual hearings are a positive development as they increase the number of cases that can be heard in each Tribunal (without the constraints of rooms etc. being available) and have prevented a huge slowdown of cases being heard in the Tribunals during the pandemic”. There is clearly scope to argue that remote hearings for some types of cases should become the default.

Is Covid purely to blame?

We cannot blame the pandemic solely for the backlog at the employment tribunals. While the pandemic caused an initial three months’ pause for most hearings as well as an increase employment disputes, it cannot be overlooked that the tribunals are severely understaffed and underfunded. With the return to a more normal way of working just around the corner and with furlough coming to an end, we are only anticipating an increase in the volume of tribunal claims yet to come. It is evident from the survey results that further resources are required that go beyond simply ensuring the overstretched staff can work remotely.

What do the delays really mean and is there a solution?

Ultimately, long delays can trigger under- or over-settling of claims. Instead of enduring the lengthy delays of the employment tribunal, claimants and respondents are more likely to take a view and settle claims rather than waiting to go to a hearing.

As to a solution: a cash injection to recruit more staff and judges will of course help, but it is uncertain whether that would be enough to reduce the ongoing strain. The reintroduction of tribunal fees has been whispered as a means of deterring unmeritorious claims and reducing the volume of claims. Will the Government try to find a way to bring issue fees back? Who knows, but it is clear that an innovative solution needs to be introduced…. and soon.

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