16th July 2019 ❘

Justice delayed – justice denied?

In July 2017, in a landmark Supreme Court decision, the system of
employment tribunal fees (under which claimants had to pay a fee to
bring a tribunal claim) was declared unlawful, leading to the fee system
being abolished. While there has been talk of an amended system being
introduced in future, to date no firm proposals have been put forward,
probably because the Government has other things on its mind at the
moment.

It probably comes as no surprise that, since the removal
of tribunal fees, the volume of claims has increased by up to 26% year
upon year and two years on from the abolition of fees, the tribunal
system is clearly struggling to deal with the increased workload.

ELA survey

To
assess the effects of this, the Employment Lawyers Association recently
conducted a review of its members and the survey revealed that:

  • over 66% of those replying to the survey have experienced an increase in the time tribunals are taking to deal with claims
  • 75% said that responses to written correspondence/applications are taking longer than a year ago
  • 51% are experiencing delays in receiving tribunal orders and judgments
  • over
    63% said that urgent applications are taking longer than the previous
    year, while 73% said that they also have experienced delays with all
    other applications to the tribunal, and
  • over 77% said that final hearings are being scheduled to take place over a year after the issue of claim.

Individual
comments from the report also highlight that this is a system crying
out for more judicial and administrative resources.

Common
complaints included: long delays in claims being processed; lengthy
delays in scheduling hearings; regular cancellations of preliminary and
full hearings; cases being re-scheduled to take place at a much later
date; telephone calls not being answered for hours; lack of responses to
correspondence and applications, including urgent applications; no
reliable process for urgent applications; overworked administrative
staff; judges being inadequately supported by administrative staff.

Consequences

All
of this is bad for both employers and for people bringing claims. For
either side, long delays in cases being dealt with lead, at the very
least, to frustration and increased stress and a continuing inability to
get disputes sorted, so that everyone can move on.

There’s
also the problem of increased legal fees caused by delays and cancelled
hearings and where cases are being heard more than a year after the
event, there’s also the issue of witnesses struggling to remember the
facts.

So, is there light at the end of the tunnel?

Yes, to some extent.

While
tribunal fees were in place, the employment tribunals significantly
reduced their staffing levels, due to a fall in the number of cases and
lower demand for the tribunal service. However, since the abolition of
fees in 2017, these resources have not yet been fully increased to match
the rising level of claims now being brought.

But that’s not to say that nothing has been done.

There
has been a significant push in recruiting judges, with 50 new
employment judges having been appointed and with an exercise to recruit
fee-paid judges currently underway. There’s also recruitment going on
for 340 non-legally qualified members of tribunal panels, which is the
first such recruitment exercise to take place in ten years.

An HM
Courts and Tribunal Service spokesperson said: ‘The employment tribunal
has seen significant increases in claims since August 2017. We have
recently recruited 58 more salaried tribunal judges in England and Wales
to tackle the increase in cases and we have been working with the
judiciary to increase capacity and performance in the tribunal.’

But
is this enough? The service is still clearly unable to cope and that’s
no good for anyone – employer or employee. More needs to be done, but
with the Government’s focus elsewhere, it’s not clear when or if this
will happen.