Are Employment Tribunals in crisis?

10 Nov 2021

It is early November 2021. Today I have been representing an employer facing a Tribunal claim for constructive dismissal and whistleblowing detriment in a preliminary hearing aimed at getting the claim ready for a final hearing. The employee resigned in December 2020. Her claim has been listed for final hearing in July 2023. Yes, really!
 
I am no scientist but it is an inevitability that memories fade with time. My claim, involving a resignation in December 2020, contains allegations of alleged mistreatment by the employee’s line manager going back to 2016. By the time we get to the final hearing, both the employee and the line manager will be cross-examined about events going back over seven years. As with most Tribunal cases, who comes out on top will depend largely on how accurate each side’s witness evidence is.
 
Sadly, as regular users of the Tribunals throughout the country, all of the DMH Stallard Employment team have similar stories to share. But what does this mean for employees and employers? And when might things improve, if at all?
 

Are Tribunal claims still on the rise?

 
The good news is that the volume of claims does seem to have plateaued. The most recent data covers claims to August this year and showed that the volume of new claims made to the Tribunal had reduced from August 2020, and had dropped back down to August 2019 levels.
 
The challenge for the Tribunals is clearing the huge backlog of claims that were issued  during the pandemic. The primary reason these claims are taking so long to conclude is due to a lack of judges.
 

Is the situation the same across the country?

 
No, the picture of long delays in claims getting to hearing is worse in certain areas of England and Wales. Unfortunately for employers based in London and the South East, the delays are generally longer here than in other parts of England and Wales.
 

How long might it take to get the claim heard?

 
Most regions in England and Wales are listing one or two day cases for Spring or Summer 2022. In the South East, the Tribunal are listing these cases for late in 2022.
 
The longer the hearing the longer the delay. The Croydon Tribunal is listing hearings lasting 10 or more days for 2024!
 

What are the practical consequences for employers?

 
The consequences of such delays are profound for both employee and employer. For the employer, the challenges we regularly see arising include:
 
  • Unavailability of witnesses – people leave their jobs and often when they do so, they become unwilling to give their time and emotional energy to help their former employer. Even if you have the strongest defence, an employer can be forced to settle a claim they should otherwise win just because their key witness has left and will not cooperate. Yes, a witness order could be sought, but this is often a last resort
  • Management time – the longer it takes to resolve a case, the more management time will be taken in dealing with it. Whether that is the managers involved, or the HR team supporting them, the time required to properly prepare for a hearing is significant
  • Documents – documents and emails go missing as time passes. Get your documents to your solicitor dealing with the claim as early as possible, as that will protect you against this
  • Legal fees – delays also inevitably mean higher legal fees for preparing the case. There remains little chance of recovering legal fees from the employee even if you win your case
  • Settlement – we increasingly see employers deciding to settle claims to get them resolved, even when they have, arguably, a strong defence to the claim. Settlements will always happen, particularly where the case is finely balanced, but to see employers feeling compelled to settle even when they have done most things right, is hard to accept
 

What steps are being taken to improve the situation?

 
Recruiting more judges seems to be the main priority for the Tribunal service. This takes time though, and we do not expect the backlog to clear for a good couple of years.
 
We are also seeing increasing use of judicial mediation, the process where a Judge is appointed to try and mediate a settlement between the parties. The good thing with mediation is that you can usually get a mediation day listed within a couple of months of both parties making the request to the Tribunal.
 
In conclusion, yes there is a crisis, and it is of major concern as both employer and employee need access to justice and for disputes to be resolved as quickly as possible. Let’s hope things do improve faster than feared.
 

Further reading

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Jonathan Compton comments on the potential issues this may cause in the competition market in the future
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Clarification on damages for data breaches handed down by Supreme Court

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On 10 November 2021, the Supreme Court handed down its judgment in Lloyd v Google LLC leading to a saving of £3billion in compensation claims
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