Employment tribunal cases returning to pre-pandemic levels

Tribunal numbers are returning to pre-pandemic levels according to the latest figures published by the Ministry of Justice. The data shows the number of single claims received and disposed of dropped by 1% and 3% respectively between July and September, compared to the same period a year ago. In addition, there has been a rise in waiting times for claims to arrive at the final hearing, in some cases extending to 12 or 18 months from the date of the claim being issued, albeit with regional variations. We’ll speak to an employment lawyer and regular tribunal user to understand what it means for employers. 

The good news is that the current health of the Tribunal Service is better than it was at the start of the pandemic in 2020 when it was virtually at breaking point. Since then a number of measures have been taken by the President of the Tribunals in England and Wales to recruit more judges and, also, the IT infrastructure has improved significantly allowing more cases to be heard remotely, in whole or part, although there remains a noticeable variation in performance and waiting times across different parts of the country, with London and the south east still lagging well behind. 

Another factor which may help is if employment tribunal fees are reintroduced. As we highlighted in this programme last week, the government is proposing to reintroduce fees for employment tribunal claims, nearly seven years after the Supreme Court quashed the previous charging regime ruling it to be unlawful. The government is proposing a modest £55 fee to issue any claim at an employment tribunal and, unlike the previous regime, there would be no additional hearing fee. The government says reintroducing fees would help to fund the under-resourced tribunal service, incentivise parties to settle disputes at an early stage and encourage better engagement in Acas early conciliation. So, arguably, the new fees regime, if it happens, could help reduce the backlog further.

So, let’s consider that. Earlier I spoke on the phone to employment lawyer and experienced tribunal user, Rebecca Sulley who has oversight of the claims handled by Pinsent Masons across the country. First question, how busy are the tribunals?” 

Rebecca Sulley: “Largely, I would say it's a split geographically in terms of how busy the tribunals are. So, the tribunals in the north of England are typically a bit quieter than the ones in the south. They're certainly dealing with cases a lot quicker than the tribunals in the south. Just by way of example, at a preliminary hearing last week, up in Leeds, we had a three-week hearing listed for October this year which is something that would never happen in one of the Midlands or south tribunals because they just don't have that availability. So, we're seeing really good availability up in the north. The Midlands is still quite busy and although hearings are listed a bit faster we're still finding that, administratively, it's taking quite a while to get communications back from the tribunal. Then in London, particularly south London, we are seeing huge backlogs, real delays in getting claims out, real delays in hearings, and quite a slow turnaround time in terms of correspondence with the tribunal.”

Joe Glavina: “During Covid we saw a big shift towards hearings being conducted remotely, or on a hybrid basis with a mix of in-person hearings and online via CVP. What’s the current state of play, Becki? What’s the mix these days?” 

Rebecca Sulley: “Yes, so preliminary hearings are pretty much always telephone or CVP. So they aren't listing preliminary hearings in person, which is sensible because the parties don't need to be there in person. Open preliminary hearings, again, are typically by CVP. So, occasionally they will be listed in person if the claimant is unrepresented but, typically, they are via CVP. As for full hearings, we are finding deductions from wages and unfair dismissal, typically, they are also via CVP, but for discrimination cases the tribunals do like people to be present for those. So more of those are in person but we are finding a lot of claimants requesting CVP hearings if they have particular medical conditions, or we might have hybrid hearings, and we're also still taking into account that a lot of people, a lot of witnesses, might be based abroad in which case we have to make sure the hearing is hybrid and that we have to apply for special permission for them to give evidence from abroad as well. So, quite a mix but I think typically the tribunals are focusing on CVP where they can do.”

Joe Glavina: “Last time we spoke you mentioned judicial assessment where an employment judge at an early stage gives a view on the strengths, weaknesses, and risks of the parties' respective claims. We don’t hear much about it. Is it being used?” 

Rebecca Sulley: “Yes, so judicial assessment is separate, that is at an earlier stage, at the preliminary hearing stage, whereas the ADR is just before the actual hearing so you've already incurred all of your costs so if you've got to that stage the employer has less of an incentive to settle. Judicial assessment is still something that the parties can ask for and both parties have to agree to it. I have not seen it used in quite a long time. I think judges are quite reluctant to give that initial view, unfortunately, and sometimes where they are willing to do it, they want to see the documents, or see the witness statements, first and you'll have already incurred the cost by that stage so it doesn't really make it worthwhile. So, I think judicial assessment has had very limited use in practice, unfortunately. It’s something that is worth having, and it's worth considering, but actually what we are finding a little bit more is that tribunals are more willing to look at things like deposit orders in a case that has little reasonable prospects. So, where we have a preliminary hearing at the outset, if the case is poorly pleaded, or we don't think it has reasonable prospects, we will try and push for a hearing to also consider a strikeout, or deposit order, and I think judges might be more willing to look at deposit orders as an alternative to a judicial assessment.”

We mentioned earlier the government’s consultation on bringing back employment tribunal fees. That consultation is now open and will be running until 25 March 2024. If you would like to put forward your views you can – we’ve included a link to the consultation paper in the transcript of this programme for you.

LINKS
- Link to government’s consultation on employment tribunal fees