Employment Tribunal system needs ‘whole system reboot’

Mounting Employment Tribunal backlogs are causing major delays in dealing with ongoing claims, leading to additional pressures for businesses and claimants, according to a leading employment lawyer.

Tim Jones, Head of Employment Law at Higgs LLP, said the Employment Tribunal continued to suffer severe delays due to the amount of claims being issued and insufficient resources to meet that demand.

Calling for a “whole system reboot”, he warned the delays caused by pandemic only served to exacerbate the underfunding in the Tribunals Service.

“The process can be painfully slow at the moment,” said Tim. “I am advising on a fairly straightforward disability discrimination case currently and the preliminary hearing was due in May. That has been postponed until November when we’ll get directions, with the hearing likely to be well into 2024.

“It’s partly a Covid hangover but it’s also the consequence underfunding. The Government has invested into the Employment Tribunal system to try and clear the backlog, but that is a drop in the ocean, really. The whole system needs a re-boot.”

Higgs has taken an in-depth look at Employment Tribunal data for 2023 and over the last 10 years. Read the report here.

According to figures released by HM Courts and Tribunals Service (HMCTS), the Employment Tribunal backlog is still increasing. In 2022, there were 50,518 cases – a new record and an increase of 3,477 on 2021.

But Tim has also raised concerns about the number of hearings that are still being heard virtually and called for more hearings to be held in person again.

Employment Tribunals were traditionally held in person and in public and judgments published on an online register, but the growth in virtual hearings risks the principle of open justice.

“The vast majority of hearings are still taking place online, with only the more complex cases taking place in person,” said Tim. “While theoretically members of the public and journalists can log on and listen, there are questions around how they know the hearings are taking place and how they obtain access.

“This opens a debate about access to justice. In my opinion, we have an opportunity to reflect. Are these changes for the best and do they comply with protocol and policy? Are they working well?”

Rules state that a hearing can take place online if the Tribunal considers remote would be ‘just and equitable’ and all concerned – those participating and members of the public – can see and hear everything that is happening.

Simple case management hearings to strike-out hearings and even some final hearings are all being heard online, and it’s likely that all preliminary hearings will default to remote.

Tim added: “There are many good aspects to remote hearings, such as reduced travel and costs for those involved. It also helps avoids last-minute adjournments if judges aren’t available in-person and can be less dauting for witnesses, as well as improving access for those with disabilities.

“However, remote hearings can be more difficult for some people, such as the deaf and those who struggle with technology, whether that’s obtaining it or using it.

“But perhaps the biggest concern is integrity. When hearings are held remotely it is far more difficult to police what assistance that person might be receiving off-camera, or what papers they may have in front of them.

“Video hearings have a part to play – but in-person is still the gold standard.”

Higgs analysis has shown that so far this year, the largest number of employment tribunal cases involve the unauthorised deduction from wages, which happens when an employee has either been unpaid, underpaid, or paid late. Between January and March this year, 7420 cases were lodged with the Tribunals Service.

The second most common type of complaint this year is breach of contract, with 6037 cases lodged in the first three months of 2023, while in third place is working time directive cases, which occur when an employee is aggrieved to be working over the legal limit of 48 hours a week on average, with 5982 complaints.

Employment Tribunals are used to settle workplace disputes between employees and employers that cannot be resolved through conciliation, negotiation or mediation, where an alleged breach of employment law has occurred.

The cases for which Employment Tribunals are best known are probably unfair dismissal and redundancy claims. While these do make up a significant proportion of all complaints, tribunals deal with a wide breadth of issues including disability discrimination, sex discrimination and equal pay.

Cases are decided based on employment law, most commonly in line with the Employment Tribunals Act 1996, the Employment Rights Act 1996 and the Equality Act 2010, though other legislation is considered. The Tribunal has the power to award compensation or other remedies if the employer is found to have acted unlawfully.