This was in part borne of the legacy of systemic resourcing reductions made across the board in the wake of the ET fees being introduced in 2013 which had seen a significant drop off in the number of cases when implemented.
Once the fees were ruled unlawful by the Supreme Court in 2017 the upsurge in cases with less ET judges and administration in place saw the backlog increase exponentially. This judicial resourcing issue is a factor that has seen Employment Lawyers Association (ELA) and others calling for additional funding.
Employment tribunals:
Employment tribunals at breaking point
Flexible working tribunal claims rise sharply
The onset of COVID-19 only worsened this situation. The ET service initially adjourned most cases via telephone hearings whilst the CVP (Could Video Platform) system was being readied. Over the course of 2020, with online CVP hearings commencing, telephone hearings continuing and some in person hearings occurring the backlog for single and multiple claims, continued to increase, so that in December 2020 it stood at over 50,000.
The pandemic saw an increase in case receipts ,for example furlough disputes, redundancies, PPE and health and safety, with a decline in disposals until towards the end of 2020. According to HMCTS the latest figures for March 2021 show an outstanding caseload of some 50,497 cases.
This total is actually part of a downward trend due in part to the ET being in the process of migrating to a new case management system from March. The figures are incomplete as they do not show all the new cases from the new system. About 60% of the outstanding ET caseload is held in London and the South East of England.
Anecdotally employment lawyers will tell you horror stories of waiting for four months to receive an ET2 acknowledgment, five months to hear regarding a reconsideration and so on. The delays have certainly increased during the pandemic, and this appears to have been contributed to by Ethos, the ET’s rather antiquated case management system being unreliable and prone to crashing.
Ethos was not properly compatible with remote working either and the early days of the pandemic saw some judges trawling through the general office inbox themselves to deal with the most urgent emails, a most challenging time.
These issues present obvious difficulties for the administration of and access to justice. Parties have had to wait far longer for their hearings to be listed and determined, with delays in listing of 12 months or more regularly occurring.
One perhaps welcome side effect, told by various ET judges, has been an uptake in both the use of judicial mediation and its success rate, even when done completely over the telephone.
What could be done to reduce the backlog? The ET president Barry Clarke has stated that the continued use of CVP is very much part of the recovery of the ET system. Clues may be discerned from the minutes of the National ET User Group of December 2020 where the president reported that there were in the region of 330 CVP rooms available across the ET system and the ET judiciary were regularly recording over 2,000 hours of CVP per week.
Some ET regions were running at twice their usual number of hearings (some hearing 13 or 14 full hearings at once). Despite some technical issues, the use of CVP with its increased accessibility and capacity, will be here to stay. Recent reports that the unemployment rate fell to 4.8% between January and March 2021 and the rate of employment increasing may also play a part in some of the most acute aspects.
The replacement ECM (Employment Case Management) should herald an improvement in the future. In addition to it being a networked system compatible with remote working, it allows for case data to be accessed where appropriate across all ET offices, meaning better communication and transferral of cases.
How long it will take for the backlog in cases to return to an acceptable level remains to be seen. The amelioration of the backlog will take strategic management and will undoubtedly require a multi-faceted approach of increased resourcing, use of CVP and more efficient administration.
Elaine Banton is a barrister at 7BR Chambers
