This week, the Minutes for the 41st Employment Tribunals National User Group meeting held on 30 June 2020 were published.
Of interest, the User Group, which consists of the President of the Employment Tribunal, Regional Employment Judges and representatives from ACAS, the Employment Lawyers Association, and the Law Society among others, discussed how Covid-19 was contributing to the backlog of cases within the Employment Tribunals.
The President commented how in early March 2020 pre-Covid-19 there were 30,687 single Tribunal cases in England, Wales and Scotland, a figure that increased to 36,616 in June 2020 at a rate of 1% with each passing week. The President predicted that by late summer, early autumn, the figure would likely be in surplus of 40,000, a challenge caused by the reduced number of judges, the reduced ability to house hearings due to need for social distancing and the likely increase of claims received following the winding-down of the Coronavirus Job Retention Scheme. This predicted figure has been met.
The Law Society anticipates an “avalanche” of claims in the coming months, adding to the backlog, as businesses look to cut costs as they emerge from Covid-19. We discuss this further in our recent article in People Management. The decision of Tribunals to convert all hearings between March and June to case management hearings has also meant that existing cases are taking longer to reach conclusion, with substantive hearings from this period now delayed until later in 2020 and in many cases, 2021.
Tribunals have been under pressure since fees were abolished in 2017, but as a result of the delays caused by the pandemic, they are now in need of urgent action to clear the building pile of cases. This is likely to be done by increasing the capacity of Judges and Tribunal staff and by holding hearings remotely where possible, to make the most efficient use of Tribunal resources. Separately, we are aware the Law Commission has also pressed ministers to double the time limit for bringing employment tribunal claims from three months to six months. Whilst this pressure has not amounted to anything yet should a decision be taken to do this, even for a limited period post pandemic, this may well avoid a surge in claims post October 2020 when the job retention scheme comes to an end.
In our experience, Tribunals are becoming increasingly slow to respond to applications, answer telephones and to list hearings. We are finding that claims that were brought at the start of lock-down are being listed for hearings in the second half of next year and onwards. These delays although frustrating, may benefit employers where they are open to exploring settlement. Claimants may be more open to settlement if they are aware that they won’t realise any money for a significant time should they decide to go down the Tribunal route. This is particularly relevant in circumstances where Claimants are unemployed, with the added benefits for employers of not having to incur the costs of defending a claim or risk an adverse finding.
For further information or if you have a potential or existing Tribunal claim that you would like to discuss, please contact any member of the team.