The employment tribunal system is still hamstrung by a lack of judicial and administrative resources, nearly two years after fees were scrapped, leading to a potential “loss of confidence in the rule of law”.
This was the verdict of the Employment Lawyers Association (ELA), after conducting its now annual survey of members, which found that responses to correspondence and applications with tribunals were taking longer than a year ago. Most (77%) respondents said that final hearings were being listed over a year after the issue of a claim – last year only 50% of respondents had reported this occurring.
Particular tribunals were more affected than others, such as London central, London south, Watford, Reading and Cardiff, where delays and capacity issues were leading cases to be transferred to other courts, often a significant distance from the original location. One-third of respondents said they had been involved in transferred cases.
For Paul McFarlane, chair of ELA’s Legislative & Policy Committee and Legal Director at Capsticks Solicitors, highlighted to Personnel Today the problems this caused: “Cases are transferred, at the last minute, where there are not enough Judges or lay members at a hearing centre to hear a case. Last year I had a case where the day before the hearing we were told it was going to be transferred from Exeter to Bristol! We had to notify our client, all of the witnesses and our barrister of this change, who then had to rearrange their travel and accommodation at very short notice.
“All those involved not only incurred the additional costs, but for the witnesses, having to arrange last-minute changes to their travel is likely to increase the stress they are under before they are due to give evidence, which cannot be a good thing for the administration of justice.”
Last year I had a case where the day before the hearing we were told it was going to be transferred from Exeter to Bristol!” –Paul McFarlane, Capsticks Solicitors
About 60% of respondents were experiencing delays in receiving orders, and judgments (including reserved judgments) – a slight increase on last year’s figure.
Areas of improvement
Some results, however, showed that there were areas of slight improvement, with fewer ELA members reporting an increase in the time tribunals were taking to deal with claims (66%, down from 75% last year).
Compared with last year, the number of single claims lodged in employment tribunals had risen by a modest 6%, and multiple claims by 13%. This, claimed the ELA, suggested that the surge in claims since the Supreme Court ruled that employment tribunal fees were unlawful in July 2017, was steadying.
The study also acknowledged that 50 employment judges had recently be recruited and another plan to recruit fee-paid judges was under way.
Unison lawyer and ELA tribunal working party member Shantha David was downbeat about the survey’s results. She said: “These numbers paint a bleak picture of the country’s employment tribunal system. Almost two years after the abolition of fees, why is it that tribunals are still unable to cope?”
David said that the individual comments from the survey highlighted how the system desperately required more judicial and administrative resources. She added that common features of the system as it stood were long delays, regular cancellations of preliminary and full hearings – often last-minute –because of a lack of judicial resource, cases being re-listed at a much later date; telephones going unanswered for hours and a lack of responses to correspondence and applications including urgent applications.
These issues led to increased costs for clients, David said. “As one respondent put it, it is ‘embarrassing to explain [these delays] to clients and leads to a loss of confidence in the rule of law – what is the point of having employment rights if they cannot be effectively enforced?’.”
David said she hoped that the new judges would help alleviate the problems but pointed out that the recruitment of extra administrative staff was urgently needed to ensure the system ran much more smoothly that it currently did.
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