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Employment Tribunals and their viral caseload what does the building backlog mean for employers
14
Apr
Employment Tribunals and their “viral caseload”: what does the building backlog mean for employers?
News

Employment Solicitor Will Chrusciel looks at a recent report into the efficiency of the Employment Tribunal system and the implications more generally of the overloaded system for employers looking to defend claims.

Background

In December 2020, the judge with oversight of both the Employment Tribunal systems in England & Wales and (separately) Scotland – The Right Honourable Sir Keith Lindblom – reported on the “systemic” and problematic backlog of claims in the Tribunal systems and detailed how they have been performing in response to the Covid-19 pandemic. In particular, he highlighted the “steady increase” in their caseload since the removal of Tribunal fees in 2017, and that there were three key problems affecting Tribunals as a result of the pandemic:

  1. The need for social distancing had resulted in a reduced footfall in buildings, resulting in a reduced ability to hold in-person hearings.
  2. The pandemic had caused the labour market to be “shaken-up” (causing an influx of claims).
  3. The Tribunal case management systems could not reliably be used remotely.

Further to that address, the Presidents of the Employment Tribunals of both England & Wales and Scotland have now outlined their shared vision for 2021-22, the principal take-away being that the use of video-calls in Tribunal proceedings is to be continued, and in some cases, the default position.

The road map for 2021-22

In their address at the beginning of April, the Presidents reflected on the more recent innovative measures that are being implemented to reduce the backlog, including:

  • An ongoing roll-out of the new case management system which will “facilitate more efficient case management, better and more reliable generation of data and, crucially, remote access”.
  • The recent appointment of 16 new Legal Officers who will focus on case progression.
  • A “virtual region” to complement the ten existing geographical regions in England & Wales – meaning that judges, judicial staff and users can congregate virtually to hear cases generated by any region.
  • An exercise which is targeted at judges working in other courts and tribunals, which aims to stimulate cross-deployment to Employment Tribunals.

Crucially, the Presidents made clear that “the future will involve more, not less, use of technology”, and identified that video hearings, whilst not simply a response to the pandemic itself, will remain an essential part of the toolkit whilst the significant backlog remains (which is specified as likely to be the case for at least two years).

As such, the default position will be that preliminary hearings of all kinds, applications for interim relief, judicial mediations and final hearings of short-track claims will default to telephone or video means. Final hearings of standard track claims and open track claims will vary (i.e. those that cover unfair dismissal, discrimination and whistleblowing). The Presidents do stress, however, that it will always be open to a judge to decide when the default position should not apply, and equally it will always be open for a user to explain why they would like the hearing to be held in a particular manner.

Important to note is that the Presidents state that the default approaches above will apply to cases yet to be listed.

Practical guidance for employers

Despite wide-ranging measures taken to tackle the unique problems created by Covid-19, and the “impressive resilience and flexibility” shown by all those working within, the recent address continues to paint a picture of an increasingly overloaded Tribunal system.

Employers should expect a general increase in claims as a result of the disrupted employment market, and it is anticipated that there will also be a surge in redundancy-related claims once the furlough scheme ends at the end of September 2021. Employers should also expect an increase in claims that relate to “novel” issues that have arisen as the pandemic has progressed – for instance, issues relating to health and safety in returning to work, or “no jab, no job” policies.

When claims are brought, employers should expect significant delays to the Tribunal process. Employers could, however, make use of the extension to the standard ACAS Early Conciliation period (from 4 weeks to 6 weeks) and use the inevitability of delay to their tactical advantage – i.e. does a claimant really want to wait several months, even years, to obtain the compensation/redress they are seeking?

Employers should also expect a rise in flexible-working requests, both non-statutory and statutory, as restrictions continue to ease and those who have enjoyed their working-from-home experience seek to negotiate a more permanent arrangement. It is vital that HR policies are updated and standardised in advance, and managers should be primed to deal with such requests. For more guidance, employers are referred to our previous recent article on flexible working requests.

On a more positive note for employers, the default position being that hearings will take place by remote means will mean that senior management and other involved personnel will spend less time and expense physically travelling to Employment Tribunals to hear cases, minimising the loss of management time. It is also expected that this will mean a corresponding saving on legal fees.

Expert legal advice

For further advice on this or any other Employment Law issue, please contact a member of our Employment Law team.

Girlings has offices in Ashford, Canterbury and Herne Bay.

Before relying on this commentary please read the Reliance on information posted section in our Terms of Website Use in our Legal section. Please note that specialist advice should be taken in relation to any specific queries and the information above is provided for general information purposes only.

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