Employment tribunals at tipping point

In recent years, employment tribunal claims have been consistently on the rise, and the courts are struggling to cope with the influx.

With backlogs hitting at a ten-year high, the Coronavirus pandemic, and nation-wide lockdown have only worsened the situation. Those within the legal sector have also warned that the situation is likely to be exacerbated when the Coronavirus Job Retention Scheme (CJRS) ends later this month.

While the government has introduced some measures to tackle the backlog, those within the legal sector fear the courts will be unable to cope with the unrelenting build up of claims.

Surge in claims and backlog balloons

Prior to 2017, taking an unfair dismissal claim to an employment tribunal, would set an employee back by around £1,200. Of course, this meant that many potential litigants were prevented from pursuing cases and attaining justice.

However, on 26 July 2017, the Supreme Court unanimously ruled to abolish fees. Since then, the number of employment tribunal claims have been on the incline. Claim numbers now exceed those prior to the introduction of fees in 2012/2013 (191,541).

According to a DataNet analysis of Ministry of Justice (MoJ) data, employment tribunal claims are up 25% over the past 5 years. The types of claims that have seen the highest increase are those involving sexual orientation discrimination, which has seen an increase of 165%. This is followed by cases of disability discrimination which have shot up by 133%, almost matched by cases of religion or belief discrimination, which is up 130%.

Elsewhere, race discrimination has risen by 95%, while cases where an employer had failed to sufficiently inform and consult employees on redundancy have seen an increase of 73%. Moreover, in the last five years, a total of 729,627 employment tribunal cases have been brought forward.

However, data published by the MoJ back in September showed that by August, a total of 39,093 single claims were outstanding. These figures beat the peak levels of 2009/2010. Ultimately, claims have been growing since March, and the average waiting time now totals at 284 days, effectively denying thousands access to justice.

Coronavirus magnifies issues

Adding to the already dire situation, Coronavirus has significantly magnified problems within the employment tribunal system.

Back in July, the Law Society urged the government to take decisive and swift action to clear the employment tribunal backlog. This, it said, would prevent a further “avalanche” of claims when the CJRS ended.

The organisation forecast that job uncertainty, and increased unemployment and redundancies would lead to a significant increase in the claims being launched against employers. Unfortunately, it looks as though its forecasts were accurate.

According to figures published by the Office for National Statistics (ONS), the UK’s unemployment rate has risen to over 4.5%, with 1.5 million people out of work. That being said, it is likely that the true number is much higher,  as this figure only covers the period between June to August.

In addition to this, the number of people being made redundant, has nearly doubled to 227,000 in that three month period, adding even more pressure to the courts. Moreover, a new survey from Acas found that 37% of employers are likely to make further redundancies in the next three months. However, 24% had huge gaps in knowledge when it came to employment law, and the requirement to consult staff prior to making redundancies.

Speaking about the impact of Coronavirus, Chris Milward, Head of Claims at ARAG, a European Insurance group, said: “We know from experience that so many redundancies will inevitably lead to a big spike in tribunal claims, not just over redundancy pay and failure to consult, but for unfair dismissal, discrimination and other causes of complaint. It is difficult to see how the employment tribunal system will be able to cope”.

Reflecting on the spike in demand for services, ARAG reported that in the six month period to August, calls for redundancy advice to its legal helpline increased by 336%.

Unfortunately, elsewhere, the pandemic has also caused disruption to planned upgrades to the employment tribunal system. This includes postponing the introduction of the new case management system.

In an interview with Personnel Today, GQ|Littler partner Raoul Parekh said that the system was already lacking in resources prior to the virus, and that the pandemic had pushed the courts to “tipping point”. Ultimately, this has resulted in some claims not being listed for hearing until 2022.

Further instability caused by the pandemic, has also damaged tribunals’ ability to effectively function, which in some cases has undermined the rule of law. Parekh added: “A lack of resources at tribunals is not only leading to long delays but also administrative mistakes. Last-minute cancellations of hearings and a lack of information about when evidence needs to be submitted before a hearing are becoming the norm. The delays are bad for employees and bad for businesses: without effective enforcement of employment rights, employers who don’t play by the rules are getting a free pass”.

Solution on the horizon?

In an effort to reduce the backlog of cases, and minimise waiting times, last month Business Minister, Paul Scully announced a number of changes to the rules around employment tribunals.

One of the key changes includes extending the time period of early conciliation from one calendar month to six weeks. Elsewhere the changes enable legal officers to take over administrative tasks typically performed by employment judges, and permit a greater use of virtual hearings. Employment tribunal rules were also loosened for handling “minor errors”.

Further to this, to ensure outcomes are made more quickly, the new rules allow multiple respondents to use the same forms (ET3) at the tribunal stage.

Speaking about the new changes, the MP for Sutton and Cheam said: “The employment tribunal system has held up very well in the face of an increased caseload and the impacts of Covid-19 – but these changes will boost its capacity further”. He added: “These reforms will provide further flexibility to the system to ensure workers and businesses receive quick and fair resolutions to disputes, both at this critical time and in the future too”.

Courts minister Chris Philp also praised the new changes: “These changes will provide speedier resolutions for businesses and employees alike, and are the latest step in our plan, backed by £80 million of funding and an additional 1,600 staff, to reduce delays and deliver justice. We are pursuing every available option including increasing the use of technology, rolling out further safety measures to ensure our courts recover from the effects of the pandemic as quickly as possible”.

However, despite this boost to HM Courts and Tribunal Service, only time will tell if enough has been done to mitigate the havoc wreaked by the virus.