Employment tribunals are at a ‘tipping point’ a leading employment lawyer has warned.
With the average wait now at 284 days (nine months), a 20 percentage point increase on last year’s 237 days, GQ|Littler partner Raoul Parekh, said coronavirus had exacerbated the trouble that tribunals were in and that they were now at a “tipping point”.
The specialist employment law firm stated that the increasing wait time had worsened issues for employers who faced uncertainty for months over the outcome of a claim, with senior management often distracted from more strategic management issues as a result.
These delays are also very frustrating for employees who have to wait for their complaints to be resolved, the firm stated.
Although the Covid-19 pandemic has increased delays, the growing wait time was placing pressure on employment tribunals before the coronavirus crisis. A recent pause in proceedings has seen the backlog of claims increasing further.
However, last week the government said it would relax the rules around tribunals to allow more hearings to be held online in an effort to deal with the rise in cases following the abolition of tribunal fees and to help manage the impact of the Covid-19 pandemic. The extent to which this will improve matters is not yet known.
At 31 March, the backlog of single claims at employment tribunals reached 31,693 – up 19% from 26,664 at 31 March 2019 and the highest level since 2010.
The backlog of claims could well be heightened by a new wave of Covid-19-related employment disputes in the coming months. These claims, said GQ|Littler were likely to be related to redundancies and other cost-cutting measures.
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” – Raoul Parekh, GQ|Littler
The law firm said the wait time between employment tribunals receiving a claim and that claim being heard had increased 44% over the past five years, up from 197 days in 2015-16.
Parekh, said: “Tribunals were already in trouble due to a lack of resources. The shock caused by coronavirus means we are now at tipping point.
“The lack of resources at tribunals and the huge backlog has resulted in some recent claims not being listed for a hearing until March 2022, 21 months away.”
Cuts to budgets in recent years meant HM Courts & Tribunals Service had been finding it difficult to employ enough frontline judicial staff, as well as key administrative staff, to deal with the volume of cases it handles, he added.
In the last six months, employment tribunals have recruited nearly 70 fee-paid judges and 300 support staff, but from recruitment drives that started two years ago. More staff are still needed, including staff to help with the transition towards more virtual hearings.
Coronavirus has also disrupted planned upgrades to employment tribunals that were designed to improve efficiency and help clear the backlog of claims. For example, the roll-out of a new case management system.
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.”
As for the possibility that some less scrupulous employers may use the situation to perpetuate bad practices, he said: “Yes, this is certainly a risk. Employment rights need effective enforcement if they are going to impact employer behaviour – and at the moment, that enforcement takes so long that it risks becoming non-existent.”
Ranjit Dhindsa, head of employment at Fieldfisher, warned that the pressure on tribunals would not tempt employers to settle more quickly: “While it is true that employment tribunals are going through a severe backlog and thus justice will be slow, it does not necessarily mean that employers will rush to settle quicker. Instead it would seem more likely, particularly in this current climate, where cashflow and forward planning is an issue, that employers will avoid pay-outs now as far as they can, delaying to wait for the trial so that if they must settle, they can do so at a time which works better for them.
“There are risks to taking this approach though, as if there is a claimant who has the resilience to wait and they win, the damages are going to be much higher to account for the lost income during that period.
“Nevertheless, employers will do what makes commercial sense. However, if a claimant pursues for a quick resolution, employers will naturally pay out less money, as they need to think about cashflow issues.”