The Employment Tribunal System has been given a £2.85m boost to its funding and the number of days they operate. In an announcement on Thursday last week the Ministry of Justice confirmed tribunals will hear up to 1,700 extra cases before April 2023. It forms part of a wider investment of £5m by the government designed to speed up the hearing of tribunals more widely, chiefly immigration and asylum cases.
The funding for employment tribunals is welcome. According to figures released last week by the MoJ, more than 25,000 claims were filed in the employment tribunals in England and Wales in the year to September, and the backlog of unheard cases reached 50,000 in October. Whilst employment tribunals are usually over-listed because a high percentage of cases settle before the hearing, nonetheless claimants are waiting up to two years in many regions for their case to be heard.
So, let’s consider that state of affairs and whether there is a way to get justice sooner. Rebecca Sulley is one of the team of lawyers based in Birmingham with an eye on what’s happening with claims across the various UK offices. Earlier she joined me by video-link to discuss the delays and how claims are being handled:
Rebecca Sulley: “There are still a large number of delays in the tribunal system largely because they're short staffed both administratively and also judicially, as well. So, we're seeing some of the biggest delays remain in London and a lot of cases we're finding three day hearings not being listed until the summer of 2024, which is obviously quite a long way away. Some of the Midlands tribunals are a bit quicker in terms of their listing for summer 2023 but there are still quite a lot of delays and what we're finding is the tribunal are saying, to try and help avoid further delays, is not to make unnecessary applications. So, if it's something you can discuss and agree between the parties, then that's preferable to asking the Tribunal to make an order. They are also saying that if you are making an application that's bound to fail, then that will obviously be frowned upon by the tribunal and we are finding judges are writing back quite robustly. So, it's really the case that you need to think carefully about whether this is something you should be writing to the tribunal about, or whether you should try and go to the other side to agree something directly. The other point I would just make is that the tribunals are saying that they are prioritising mediation. So, if mediation is something that you think you be interested in for your case, then it is certainly worth making that clear in the title of any email that you wrote to the tribunal because they are looking out for those emails to try and avoid time in hearing.”
Joe Glavina: “You mention mediation. Are you finding clients are more prepared to give mediation a try and so jump the queue and get their case settled?”
Rebecca Sulley: “Yes, we are absolutely finding that. So, what we're finding is twofold. So, the tribunals are really encouraging settlement, they're pushing judicial mediation, some tribunals have mandatory ADR, which is really a last ditch attempt to try and get the parties to settle, but we are also finding a lot of clients are concerned that witnesses will have forgotten by the time two years rolls by, they will have forgotten what happened and therefore the evidence might suffer and, of course, there's still turnover of staff. So, we're finding a lot of witnesses have left by the time the hearing takes place and are often not willing to give evidence. So, that really is forcing a lot of clients to reconsider their position on fighting the tribunal.”
Joe Glavina: “And presumably, if you choose mediation, it stops the costs of the litigation racking up?”
Rebecca Sulley: “The benefit of mediation is that you can generally put all your directions on hold to avoid incurring those costs and tribunals will try and get a mediation in the diary relatively quickly. What you will need to have is a call with the tribunal for them to agree whether or not mediation is worthwhile and likely to succeed but, in many cases it will be. So, that does help in that you can get a mediation listed a lot sooner than your actual hearing to try and get a resolution to the case.”
Joe Glavina: “There are two types of mediation - judicial mediation with a judge and private mediation with an independent mediator. What's the split generally, and which proves to be more popular and more successful? “
Rebecca Sulley; “Largely judicial mediation is preferred and I think the reason for that is that claimants don't feel that there's a lack of independence if you go to a judge and, although they're not meant to give their view on the prospects of a case, they can obviously steer a claimant into what they would need to show at tribunal and how their case might come out- and, also, in terms of what likely awards there are going to be, and we find claimants, especially those in person, are a lot more likely to listen to a judge who would ultimately be deciding their case than they would be to a private independent mediator.”
Those facts and figures we cited at the start of the programme are data published last week by the MoJ. That’s their ‘Employment tribunal and EAT quarterly statistics for the period July to September 2022’. We have put a link to that in the transcript of this programme.
- Link to Employment tribunal and EAT quarterly statistics for the period July to September 2022