The average waiting time for a first hearing at an employment tribunal is now almost a year. However, new technology for the Employment Tribunal due to be rolled out later this year is the silver lining.
The Ministry of Justice has set out the latest data in answer to a written question to parliament which has been published in Hansard. The average time from receipt of the ET1 to a first hearing, whether that be preliminary hearing or disposal of the case, is 335 days for single claims. For multiple claims it exceeds a year, at 388 days. The data covers the period up to March 2021 which seems a long time ago but, as they explain, that’s because the Employment Tribunal has moved to a new case management system and the courts service is currently working to incorporate the new IT system alongside longer-established data sources to provide a more complete and consistent data set for this jurisdiction.
Meanwhile the pilot of the new Video Hearing Service in Birmingham has concluded. They say they are now in the data gathering stage which will inform further development. The roll out of the new service, which will replace Cloud Video Platform, CVP, at some point this year will be tailored to the needs of each individual tribunal across the country and should, if it works as intended, help bring down the waiting times significantly.
To that end, CVP has certainly been very effective. Judge Barry Clarke, President of Employment Tribunals in England and Wales and Scotland’s President Judge Shona Simon have described it as the employment tribunals’ greatest ally. Their most recent report, the 2021 Annual Report, shows employment tribunals have become one of the biggest jurisdictional users of CVP, regularly spending 3,000 hours a week on a platform that until recently was largely unknown. Clarke explains how, thanks to CVP, the Tribunals Service has managed to restore the ‘disposal rate’ to its pre-pandemic level. Looking ahead, he says we will continue to be heavily reliant on CVP, and its successor platform, for at least the next two years.
As for Scotland, Judge Shona Simon who announced that she will be retiring this year, reports that all tribunal locations in Scotland now have the equipment to allow hearings to take place in a ‘hybrid’ format meaning that, for example, that the tribunal panel can be together in the tribunal building, with parties, representatives and witnesses joining remotely when required. However, she says she doesn’t envisage video hearings becoming the norm. She says while they have their pros, they also have their cons, referring to research and surveys from stakeholders showing that whilst they might be good for getting through cases quickly, they are not always the best way to achieve justice, which is the whole point, of course.
On the backlog, it is worst in parts of England and the problem is not geographically uniform across the country – that’s because resources are not evenly distributed. Across England and Wales, about 60% of the outstanding caseload sits in London and the South East but that region only has a third of the judges. Two regions in particular, South East England (administered mainly from Watford) and London South (administered from Croydon), have far fewer judges than they need although to some extent that has now been addressed after a major recruitment drive.
So that’s the view of the two Presidents but let’s hear from a practitioner. Rebecca Sulley has been in the thick of it throughout the pandemic, defending tribunal cases for clients mostly based in England, typically the Midlands and the South East. Rebecca joined me by video-link from Birmingham to discuss the backlog and her experience of CVP:
Rebecca Sulley: “Yes, so COVID has had a massive impact on the tribunal system, they really weren't set up for anything like this. Previously it had always been in-person hearings and it was very difficult to even really get a telephone hearing for something simple like a preliminary hearing but obviously, with the pandemic, the tribunals have been forced to adapt and they've done so via the use of CVP hearings which is like a video hearing where all parties attend remotely and that's something that has actually worked very well after the initial teething problems and it's something that the tribunals will be continuing with, even post pandemic, because they have realised that actually, it does save a lot of time and it means that people can dial in from their various locations and not have the same issues in getting to tribunal, especially if they have a cold, for example. So it is something that tribunals have said that they will be continuing with post pandemic so that has been one good thing that has come out of this.”
Joe Glavina: “We know about the massive backlog in the tribunal system with cases being listed 2 years or more in advance in some regions, and how that’s caused problems for witnesses. Tell me about that.”
Becki Sulley: “So what we're finding is because there are such delays in the tribunal process, and hearings have been listed so far in advance, often witnesses have left employment by the time it comes to the hearing and, of course, the further away they are in time the less likely they are to actually still be willing to give evidence on behalf of the employer. So what we're finding is we're often having to take witness statements a lot earlier than we ordinarily would, perhaps before they leave employment. If they are leaving via a settlement agreement, for example, we would include in there that they would still offer assistance with the tribunal claim and give evidence. Occasionally we're having to go and get witness orders because witnesses are leaving and then not responding to correspondence from ourselves, or just deciding they don't want to give evidence in a key tribunal case. So we are finding that the delays are impacting on witnesses and their availability to give evidence.”
Joe Glavina: “A new case management system has been rolled out across Great Britain – that was completed in May. It’s cloud-based and can be accessed by staff working at home. It sounds like progress, Becki.”
Rebecca Sulley: “So the tribunal system is a relatively archaic system. They’ve had paper based systems which has really caused many problems in the pandemic with staff not being able to attend the tribunal offices- and that's resulted in massive delays in getting claims progressed. So they are looking at bringing in a new case management system to hopefully make things a lot quicker and also make listing hearings a lot quicker because we're finding that not all preliminary hearings are being listed when the claim comes in, which means that there is quite a long delay between responding to the claim and attending a hearing to agree the issues. So with the new case management system it's hoped that they will be able to respond quicker to correspondence and also to ensure that hearings are listed quicker than they have been.”
Joe Glavina: “There’s a been a big recruitment exercise with a lot of new judges appointed to help to deal with the backlog. Most of them are going to London, I gather.”
Rebecca Sulley: “So London has really suffered in terms of the tribunal system. They’ve had a huge number of claims coming in and they've really struggled with admin resourcing and judicial resourcing. So they have gone out on a big recruitment drive and there are a large number of judges joining across the regions but, predominantly, they will be supporting London and the south east because that is where the biggest backlog is. So it's hoped that with more judges on board and the possibility to do more remote hearings we won't be so limited to only using judges who are based physically within London. So hopefully that will really help improve the backlog that we're currently seeing in those areas. They are also looking at bringing in additional resource, people who can review applications that have been made or correspondence between the parties and hopefully progress that rather than it being a case of having to wait until right near the hearing before it’s looked at.”
That report on how tribunals have coped, and are coping, during the pandemic is the Senior President of Tribunals’ Annual Report 2021. The section dealing with the employment tribunals, and the EAT, is at Annex C. If you would like to read that for yourself you can - we have put a link to it in the transcript of this programme.