Does the employment tribunal backlog call for a reboot?

The backlog of employment tribunal cases, worsened by the pandemic, is showing little sign of easing according to employment lawyers.

The latest figures from the Ministry of Justice showed that the open caseload for single claims decreased 4% to 37,000 in the fourth quarter of 2022/23 (ending March this year) compared with the same period last year.

Despite this fall, Alex Watson, employment partner at Fieldfisher, warned that the backlog is still running high, causing problems for employers and claimants.

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Speaking to HR magazine, Watson said: “The number of live cases in the system hovers dangerously close to record numbers.

“The number of claims submitted to the employment tribunal also continues to rise, despite the employment tribunal's success in disposing of more cases, for example through judicial mediation, strike-outs or hearings.

“As a result, we are still routinely seeing cases listed for a final hearing more than 12 months after a claim is issued.

“There is no sign of the number of claims being submitted slowing down or a substantial impact to the outstanding caseload being made.”

To try to ease the backlog, the UK government invested £2.85 million into the employment tribunal system in December 2022, which enabled up to 1,700 more cases to be heard before the end of March 2023.

However, Higgs’ head of employment law Tim Jones, argued the system is still thwarted by underfunding, and is need of overhaul.

He said: “The process can be painfully slow at the moment.

“I am advising on a fairly straightforward disability discrimination case currently and the preliminary hearing was due in May. That has been postponed until November when we’ll get directions, with the hearing likely to be well into 2024.

“It’s partly a Covid hangover but it’s also the consequence underfunding. The government has invested into the employment tribunal system to try and clear the backlog, but that is a drop in the ocean, really. The whole system needs a reboot.”

Jonathan Lord, senior lecturer in HR management and employment law at the University of Salford agreed that further funding is needed to address the backlog, however an entire reboot may not be necessary.

Speaking to HR magazine, Lord said: “From our previous research and analysis of the various concerns and issues within the employment tribunal system, we believe the system as a whole is not a barrier to justice and does not need a reboot.”

The timeliness of employment tribunal hearings must be addressed, he added, as it has been found to have a negative impact on both parties.

He said: “This rising backlog is leaving both employees and employers in limbo for far too long and is likely causing both a financial and mental toll to both parties.

“Our current research, where we have interviewed employers and employees who have accessed the tribunal service, has highlighted the impact the case has had on their wellbeing and personal lives.”

The tribunal service has said these issues are particularly affecting cases in London and the south-east of England.

Lord added: “The tribunal system has also acknowledged there were too few judges and a high turnover of office staff, as well as some of their office buildings in some regions being too small, too frail or both.”

According to Higgs' analysis of unauthorised deduction from wages, where an employee is either not paid, underpaid, or paid late, has been the most common cause of employment tribunals this year so far as 7,420 cases were lodged between January and March.

Breach of contract was the second most common reason (6,037 cases in the same period), followed by working time directive cases (5,982 cases).